Unlawful combatant
Encyclopedia
An unlawful combatant or unprivileged combatant/belligerent is a civilian
who directly engages in armed conflict in violation of the laws of war
. An unlawful combatant may be detained or prosecuted under the domestic law of the detaining state for such action.
The Geneva Conventions
apply in wars between two or more sovereign state
s. Article 5 of the Third Geneva Convention
states that the status of a detainee may be determined by a "competent tribunal
." Until such time, he is to be treated as a prisoner of war
. After a "competent tribunal" has determined that an individual detainee is an unlawful combatant, the "detaining power" may choose to accord the detained unlawful combatant the rights and privileges of a prisoner of war as described in the Third Geneva Convention, but is not required to do so. An unlawful combatant who is not a national of a neutral State, and who is not a national of a co-belligerent State, retains rights and privileges under the Fourth Geneva Convention
so that he must be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial
."
While the concept of an unlawful combatant is included in the Third Geneva Convention, the phrase itself does not appear in the document. Article 4 of Third Geneva Convention does describe categories under which a person may be entitled to POW status; and there are other international treaties that deny lawful combatant status for mercenaries and children. In the United States, the Military Commissions Act of 2006
codified the legal definition of this term and invested the U.S. President
with broad discretion
to determine whether a person may be designated an unlawful enemy combatant under United States law. The assumption that such a category as unlawful combatant exists is not contradicted by the findings of the International Criminal Tribunal for the Former Yugoslavia
in the Celebici Judgment. The judgment quoted the 1958 ICRC
commentary on the Fourth Geneva Convention: Every person in enemy hands must be either a prisoner of war and, as such, be covered by the Third Convention; or a civilian covered by the Fourth Convention. Furthermore, "There is no intermediate status; nobody in enemy hands can be outside the law," because in the opinion of the ICRC, "If civilians directly engage in hostilities, they are considered 'unlawful' or 'unprivileged' combatants or belligerents (the treaties of humanitarian law do not expressly contain these terms). They may be prosecuted under the domestic law of the detaining state for such action".
The Geneva Conventions do not recognize any lawful status for combatants in conflicts not involving two or more nation states. A state in such a conflict is legally bound only to observe Article 3 of the Geneva Conventions and may ignore all the other Articles. But each one of them is completely free—and should be encouraged—to apply all or part of the remaining Articles of the Convention.
or the Geneva Conventions
. So while the former terms are well understood and clear under international law, the term "unlawful combatant" is not.
At the First Hague Conference, which opened on 6 May 1899, there was a disagreement between the Great Powers—which considered francs-tireurs
to be unlawful combatants subject to execution on capture—and a group of small countries headed by Belgium—which opposed the very principle of the rights and duties of armies of occupation and demanded an unlimited right of resistance for the population of occupied territories. As a compromise, the Russian delegate, F. F. Martens, proposed the Martens Clause
, which is included in the preamble to the 1899 Hague Convention II – Laws and Customs of War on Land. Similar wording has been incorporated into many subsequent treaties that cover extensions to humanitarian law.
, 12 August 1949 (GCIII) of 1949 defines the requirements for a captive to be eligible for treatment as a POW. A lawful combatant is a person who commits belligerent acts, and, when captured, is treated as a POW. An unlawful combatant is someone who commits belligerent acts but does not qualify for POW status under GCIII Articles 4 and 5.
These terms thus divide combatants in a war zone into two classes: those in armies and organised militias and the like (lawful combatants), and those who are not. The critical distinction is that a "lawful combatant" (defined above) cannot be held personally responsible for violations of civilian laws that are permissible under the laws and customs of war; and if captured, a lawful combatant has to be treated as a prisoner of war by the enemy Power under the conditions laid down in the Third Geneva Convention.
If there is any doubt about whether a detained alleged combatant is a "lawful combatant" then the combatant must be held as a prisoner of war until his or her status has been determined by "a competent tribunal". If that tribunal rules that a combatant is an "unlawful combatant" then the person's status changes to that of a civilian which may give them some rights under the Fourth Geneva Convention
.
, 12 August 1949 (GCIV), if they qualify as a "protected person".
If the individual fulfills the criteria as a protected person, they are entitled to all the protections mentioned in GCIV. It should be emphasised that, in a war zone, a national of a neutral state, with normal diplomatic representation, is not a protected person under GCIV.
If a combatant does not qualify as a POW, then, if they qualify as a protected person, they receive all the rights which a non-combatant civilian receives under GCIV, but the party to the conflict may invoke Articles of GCIV to curtail those rights. The relevant Articles are 5 and 42.
It is likely that if they are found to be an "unlawful combatant" by "a competent tribunal" under GCIII Article 5, and if 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 a "fair and regular trial", the individual in question is 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 of GCIV, the party may invoke Article 42 of GCIV and use "internment" to detain the "unlawful combatant".
For those nations that have ratified Protocol I
of the Geneva Conventions, are also bound by Article 45.3 of that protocol which curtails GCIV Article 5.
The last time that American and British unlawful combatants were executed after "a regularly constituted court" was the Luanda Trial
as mercenaries.
(GCIII), until a competent tribunal finds him to be in violation of his parole.
The Geneva Convention (1929)
made no mention of parole, but as it was supplemental to the Hague conventions, it relied on the wording of Hague to address this issue. The authors of GCIII, 1949, decided to include a reference with some modification to parole, because during the Second World War, some belligerent countries did permit such release to some extent.
Article 21 of GCIII (1949) reproduces the Articles 10 and 11 of the Have IV: Regulations Respecting the Laws and Customs of War on Land, 18 October 1907, but did not include Article 12, which provides: "Prisoners of war liberated on parole and recaptured bearing arms against the Government to whom they had pledged their honour, or against the allies of that Government, forfeit their right to be treated as prisoners of war, and can be brought before the courts." Nevertheless, contained in the commentary on GCIII: The only safeguard available to a parole violator—who has been coerced into fighting, and who has been recaptured by the Power that detained him previously—is contained in the procedural guarantees to which he is entitled, pursuant to Article 85 of GCIII.
In the opinion of Major Gary D. Brown, United States Air Force (USAF), this means that "[T]he Hague Convention specified that parole breakers would forfeit their right to be treated as prisoners of war if recaptured. The 1949 Geneva Convention is less direct on the issue. A recaptured parole violator under the Convention would be afforded the opportunity to defend himself against charges of parole breaking. In the interim, the accused violator would be entitled to P[o]W status."
(Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts) it is stated in the first sentence "A mercenary
shall not have the right to be a combatant or a prisoner of war."
On 4 December 1989 the United Nations passed resolution 44/34 the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. It entered into force on 20 October 2001 and is usually known as the UN Mercenary Convention
. Article 2 makes it an offence to employ a mercenary and Article 3.1 states that "A mercenary, as defined in article 1 of the present Convention, who participates directly in hostilities or in a concerted act of violence, as the case may be, commits an offence for the purposes of the Convention."
Convention on the Rights of the Child
, Article 38, (1989) proclaimed: "State parties shall take all feasible measures to ensure that persons who have not attained the age of 15 years do not take a direct part in hostilities".
In a 2003 briefing for the 4th UN Security Council open debate on children and armed conflict by Human Rights Watch
they state in their introduction that:
On 26 July 2005, the United Nations Security Council unanimously passed UN Security Council Resolution 1612, the sixth in a series of resolutions about children and armed conflict. Resolution 1612 established the first comprehensive monitoring and reporting system for enforcing compliance among those groups using child soldiers in armed conflict.
s as interpreted by the judicial branch of the United States government.
. 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):
The validity of this case, as basis for denying prisoners in the War on Terrorism
protection by the Geneva Conventions, has been disputed. A report by the American Bar Association
commenting on this case, states:
Since the 1942 Quirin case, the US signed and ratified the 1949 Geneva Conventions
, which are, therefore, considered to be a part of US municipal law, in accordance with the Supremacy Clause
in the Constitution of the United States. In addition the US Supreme Court invalidated this premise, in Hamdan v. Rumsfeld
, by ruling that Common Article Three of the Geneva Conventions applies to detainees in the War on Terror, and that the Military Tribunals
used to try these suspects were in violation of US and international law.
Congress addressed these issues in the Military Commissions Act of 2006
, so that enemy combatants and unlawful enemy combatants might be tried under military commissions; however, on 12 June 2008, the Supreme Court ruled, in Boumediene v. Bush
, that Guantanamo Bay captives were entitled to access the US justice system, and that the military commissions as constituted under the Military Commissions Act of 2006 fell short of what was required of a court under the United States constitution (see the section below for more details).
, the United States Congress passed a resolution known as the Authorization for Use of Military Force (AUMF) on 18 September 2001. In this, Congress invoked the War Powers Resolution
and stated:
Using the authorization granted to him by Congress, on 13 November 2001, President Bush
issued a Presidential Military Order: "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism
" which allowed "individuals ... to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals
", where such individuals are a member of the organization known as al Qa'ida; or has conspired or committed acts of international terrorism, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy. The order also specifies that the detainees are to be treated humanely.
The length of time for which a detention of such individuals can continue before being tried by a military tribunal is not specified in the military order. The military order uses the term "detainees" to describe the individuals detained under the military order. The U.S. administration chooses to describe the detainees held under the military order as "illegal enemy combatants".
With the U.S. invasion of Afghanistan
some lawyers in the Justice Department
's Office of Legal Counsel and in the office of White House
counsel Alberto Gonzales
advised President Bush that he did not have to comply with the Geneva Conventions in handling detainees in the War on Terrorism
. This applied not only to members of al Qa'ida but the entire Taliban, because, they argued, Afghanistan was a "failed state."
Despite opposition from the U.S. State Department, which warned against ignoring the Geneva Conventions, the Bush administration
thenceforth began holding such individuals captured in Afghanistan under the military order and not under the usual conditions of Prisoners of War. For those U.S. citizens detained under the military order, US officials, such as Vice President Dick Cheney
, argue that the urgency of the post-9/11 environment called for such tactics in administration's war against terrorism.
Most of the individuals detained by the U.S. military on the orders of the U.S. administration were initially captured in Afghanistan. The foreign detainees are held in the Guantanamo Bay detention camp established for the purpose at the Guantanamo Bay Naval Base
, Cuba
. Guantanamo was chosen because, although it is under the de facto control of the United States administration, it is not a sovereign territory
of the United States, and a previous Supreme Court ruling Johnson v. Eisentrager
in 1950 had ruled that U.S. courts had no jurisdiction over enemy aliens held outside the USA.
In Rasul v. Bush
the Supreme Court ruled that "the US Guantanamo Bay, Cuba, Naval Base, which the United States occupies under a lease and treaty recognizing Cuba's ultimate sovereignty, but giving this country complete jurisdiction and control for so long as it does not abandon the leased areas." and that as the United States had complete jurisdiction, the federal courts has the authority under the federal habeas corpus statute to decide whether foreign nationals (non-U.S. citizens) held in Guantanamo Bay were rightfully imprisoned. This ruling largely overturned the judicial advantage for the U.S. administration of using the Naval Base, that Johnson v. Eisentrager
seemed to have conferred.
Yaser Hamdi was captured in Afghanistan
in 2001. He was taken to Guantanamo Bay Naval Base, but was transferred to jails in Virginia and South Carolina after it became known that he was a U.S. citizen. On 23 September 2004, the United States Justice Department agreed to release Hamdi to Saudi Arabia
, where he is also a citizen, on the condition that he gave up his U.S. citizenship. The deal also bars Hamdi from visiting certain countries and to inform Saudi officials if he plans to leave the kingdom. He was a party to a Supreme Court decision Hamdi v. Rumsfeld
which issued a decision on 28 June 2004, repudiating the U.S. government's unilateral assertion of executive authority to suspend the constitutional protections of individual liberty of a U.S. citizen. The Court recognized the power of the government to detain unlawful combatants, but ruled that detainees must have the ability to challenge their detention before an impartial judge. Though no single opinion of the Court commanded a majority, eight of the nine justices of the Court agreed that the Executive Branch does not have the power to hold indefinitely a U.S. citizen without basic due process protections enforceable through judicial review.
On 8 May 2002, José Padilla, also known as Abdullah al-Muhajir, was arrested by FBI agents at Chicago
's O'Hare International Airport
and held as material witness on the warrant issued in New York State about the 2001 9/11 attacks. On 9 June 2002 President Bush issued an order to Secretary Rumsfeld to detain Padilla as an "enemy combatant". The order legally justified the detention by leaning on the AUMF which authorized the President to "..use all necessary force against those nations, organizations, or persons..." and in the opinion of the administration a U.S. citizen can be an enemy combatant (This was decided by the United States Supreme Court in the case of Ex Parte Quirin). Padilla is being detained in Miami and is accused of providing material support for terrorism
.
Following the Hamdan v. Rumsfeld
-ruling (November 2004) the Bush administration has begun using Combatant Status Review Tribunals to determine the status of detainees. By doing so the obligation under Article 5 of the GCIII was to be addressed.
However, critics maintain these CSRTs are inadequate to warrant acceptance as "competent tribunal." Their principal arguments are:
Notable cases pointed to by critics as demonstrating the flawed nature of the procedure include: Mustafa Ait Idir
, Moazzam Begg
, Murat Kurnaz
, Feroz Abbasi
, and Martin Mubanga
. A comment by legal experts states:
James Crisfield, the legal advisor to the Tribunals, offered his legal opinion, that CSRT "do not have the discretion to determine that a detainee should be classified as a prisoner of war — only whether the detainee satisfies the definition of 'enemy combatant'". Determining whether a captive should be classified as a prisoner of war is the sole purpose of a competent tribunal.
Analysis of these Tribunals by two lawyers for Guananamo detainees, Professor Mark P. Denbeaux of the Seton Hall University School of Law
, his son Joshua Denbeaux, and some of his law students resulted in a report called No-hearing hearings
. In essence it supports the criticism voiced above.
into law, Title 10 of the United States Code was amended to include a definition of an "unlawful enemy combatant" as
The definition of a lawful enemy combatant is also given, and much of the rest of the law sets out the specific procedures for determining whether a given detainee of the U.S. armed forces is an unlawful enemy combatant and how such combatants may or may not be treated in general and tried for their crimes in particular. Among its more controversial provisions, the law stipulates that a non United States citizen held as an enemy combatant or is awaiting such determination may not seek habeas corpus
relief. Such detainees must simply wait until the military convene a detainee status review tribunal (under the procedures described in the Detainee Treatment Act of 2005).
Immediately after Bush signed the Act into law, the U.S. Justice Department notified the U.S. Court of Appeals for the District of Columbia that the Court no longer had jurisdiction over a combined habeas case that it had been considering since 2004. A notice dated the following day listed 196 other pending habeas cases for which it made the same claim.
Of the first three war crimes cases brought against Guantanamo Bay detainees under the Military Commissions Act, one resulted in a plea bargain
and the two others were dismissed on jurisdiction
al grounds.
On 4 June 2007, in two separate cases, military tribunals dismissed charges against detainees who had been designated as "enemy combatants" but not as "unlawful enemy combatants". The first case was that of Omar Khadr
, a Canadian
who had been designated as an "enemy combatant" in 2004. Khadr was accused of throwing a grenade during a firefight in Afghanistan in 2002. Colonel
Peter Brownback
ruled that the military tribunals, created to deal with "unlawful enemy combatants", had no jurisdiction over detainees who had been designated only as "enemy combatants". He dismissed without prejudice all charges against Khadr. Also on 4 June, Captain Keith J. Allred
reached the same conclusion in the case of Salim Ahmed Hamdan
.
The United States Department of Defense
responded by stating: "We believe that Congress intended to grant jurisdiction under the Military Commissions Act to individuals, like Mr. Khadr, who are being held as enemy combatants under existing C.S.R.T.
procedures." That position was called "dead wrong" by Specter.
, 5-4 that Guantanamo captives were entitled to access the US justice system. Justice Anthony Kennedy
wrote in the majority opinion:
The Court also ruled that the Combatant Status Review Tribunals were "inadequate".
Ruth Bader Ginsburg
, Stephen Breyer
, David Souter
and John Paul Stevens
joined Kennedy in the majority.
Chief Justice John Roberts, in the minority opinion, called the CSR Tribunals:
Samuel Alito
, Clarence Thomas
and Antonin Scalia
joined Roberts in the dissent.
Vincent Warren, the executive director of the Center for Constitutional Rights
, the organization that initiated the action that triggered the Supreme Court ruling responded:
's nominees for Attorney General
and Solicitor General
, Eric Holder
and Elena Kagan
, both testified they agreed the U.S. government may detain combatants in accordance with the laws of war until the end of the war, (this sidesteps the issue of deciding whether the combatant is a lawful or unlawful combatant and the need to try them). When asked by Senator Lindsey Graham
"If our intelligence agencies should capture someone in the Philippines that is suspected of financing Al Qaeda worldwide, would you consider that person part of the battlefield?" Both Holder and Kagan said that they would.
, since the 2002 "Imprisonment of Illegal Combatants Law", makes theoretical distinctions between lawful and unlawful combatants and the legal status thereof.
The United Kingdom Crown Prosecution Service
(CPS) makes the distinction. The CPS conducted a "through review of the evidence concerning the deaths of Sergeant Steven Roberts of the 2nd Royal Tank Regiment and Mr Zaher Zaher, an Iraqi national, at Az Zubayr, Iraq on 24 March 2003":
, Human Rights Watch
and the International Committee of the Red Cross
.
In response to the US-led military campaign in Afghanistan, a legal advisor at the Legal Division of the ICRC, published a paper on the subject, in which it states:
Human Rights Watch have pointed out that in a judgement, the International Criminal Tribunal for the Former Yugoslavia
interpreted the International Committee of the Red Cross, Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva: 1958) to mean that:
This does not mean that the status of unlawful combatant does not exist because in the opinion of the ICRC "If civilians directly engage in hostilities, they are considered 'unlawful' or 'unprivileged' combatants or belligerents ... [and] They may be prosecuted under the domestic law of the detaining state for such action".
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.
USA specific
Civilian
A civilian under international humanitarian law is a person who is not a member of his or her country's armed forces or other militia. Civilians are distinct from combatants. They are afforded a degree of legal protection from the effects of war and military occupation...
who directly engages in armed conflict in violation of the laws of war
Laws of war
The law of war is a body of law concerning acceptable justifications to engage in war and the limits to acceptable wartime conduct...
. An unlawful combatant may be detained or prosecuted under the domestic law of the detaining state for such action.
Geneva Conventions
The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of the victims of war...
apply in wars between two or more sovereign state
Sovereign state
A sovereign state, or simply, state, is a state with a defined territory on which it exercises internal and external sovereignty, a permanent population, a government, and the capacity to enter into relations with other sovereign states. It is also normally understood to be a state which is neither...
s. Article 5 of the Third Geneva Convention
Third Geneva Convention
The Third Geneva Convention, relative to the treatment of prisoners of war, is one of the four treaties of the Geneva Conventions. It was first adopted in 1929, but was significantly updated in 1949...
states that the status of a detainee may be determined by a "competent tribunal
Tribunal
A tribunal in the general sense is any person or institution with the authority to judge, adjudicate on, or determine claims or disputes—whether or not it is called a tribunal in its title....
." Until such time, he is to be treated as a prisoner of war
Prisoner of war
A prisoner of war or enemy prisoner of war is a person, whether civilian or combatant, who is held in custody by an enemy power during or immediately after an armed conflict...
. After a "competent tribunal" has determined that an individual detainee is an unlawful combatant, the "detaining power" may choose to accord the detained unlawful combatant the rights and privileges of a prisoner of war as described in the Third Geneva Convention, but is not required to do so. An unlawful combatant who is not a national of a neutral State, and who is not a national of a co-belligerent State, retains rights and privileges under the Fourth Geneva Convention
Fourth Geneva Convention
The Geneva Convention relative to the Protection of Civilian Persons in Time of War, commonly referred to as the Fourth Geneva Convention and abbreviated as GCIV, is one of the four treaties of the Geneva Conventions. It was adopted in August 1949, and defines humanitarian protections for civilians...
so that he must be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial
Right to a fair trial
The right to fair trial is an essential right in all countries respecting the rule of law. A trial in these countries that is deemed unfair will typically be restarted, or its verdict voided....
."
While the concept of an unlawful combatant is included in the Third Geneva Convention, the phrase itself does not appear in the document. Article 4 of Third Geneva Convention does describe categories under which a person may be entitled to POW status; and there are other international treaties that deny lawful combatant status for mercenaries and children. In the United States, the Military Commissions Act of 2006
Military Commissions Act of 2006
The United States Military Commissions Act of 2006, also known as HR-6166, was an Act of Congress signed by President George W. Bush on October 17, 2006. Drafted in the wake of the Supreme Court's decision on Hamdan v...
codified the legal definition of this term and invested the U.S. President
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
with broad discretion
Discretion
Discretion is a noun in the English language with several meanings revolving around the judgment of the person exercising the characteristic.-Meanings:*"The Art of suiting action to particular circumstances"...
to determine whether a person may be designated an unlawful enemy combatant under United States law. The assumption that such a category as unlawful combatant exists is not contradicted by the findings of the International Criminal Tribunal for the Former Yugoslavia
International Criminal Tribunal for the former Yugoslavia
The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, more commonly referred to as the International Criminal Tribunal for the former Yugoslavia or ICTY, is a...
in the Celebici Judgment. The judgment quoted the 1958 ICRC
International Committee of the Red Cross
The International Committee of the Red Cross is a private humanitarian institution based in Geneva, Switzerland. States parties to the four Geneva Conventions of 1949 and their Additional Protocols of 1977 and 2005, have given the ICRC a mandate to protect the victims of international and...
commentary on the Fourth Geneva Convention: Every person in enemy hands must be either a prisoner of war and, as such, be covered by the Third Convention; or a civilian covered by the Fourth Convention. Furthermore, "There is no intermediate status; nobody in enemy hands can be outside the law," because in the opinion of the ICRC, "If civilians directly engage in hostilities, they are considered 'unlawful' or 'unprivileged' combatants or belligerents (the treaties of humanitarian law do not expressly contain these terms). They may be prosecuted under the domestic law of the detaining state for such action".
International law and practice
The term "unlawful combatant" has been used for the past century in legal literature, military manuals, and case law. However, unlike the terms "combatant", "prisoner of war", and "civilian", the term "unlawful combatant" is not mentioned in either the HagueHague Conventions (1899 and 1907)
The Hague Conventions were two international treaties negotiated at international peace conferences at The Hague in the Netherlands: The First Hague Conference in 1899 and the Second Hague Conference in 1907...
or the Geneva Conventions
Geneva Conventions
The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of the victims of war...
. So while the former terms are well understood and clear under international law, the term "unlawful combatant" is not.
At the First Hague Conference, which opened on 6 May 1899, there was a disagreement between the Great Powers—which considered francs-tireurs
Francs-tireurs
Francs-tireurs – literally "free shooters" – was used to describe irregular military formations deployed by France during the early stages of the Franco-Prussian War...
to be unlawful combatants subject to execution on capture—and a group of small countries headed by Belgium—which opposed the very principle of the rights and duties of armies of occupation and demanded an unlimited right of resistance for the population of occupied territories. As a compromise, the Russian delegate, F. F. Martens, proposed the Martens Clause
Martens Clause
The Martens Clause was introduced into the preamble to the 1899 Hague Convention II – Laws and Customs of War on Land.The clause took its name from a declaration read by Fyodor Fyodorovich Martens, the Russian delegate at the Hague Peace Conferences 1899 and was based upon his words:The...
, which is included in the preamble to the 1899 Hague Convention II – Laws and Customs of War on Land. Similar wording has been incorporated into many subsequent treaties that cover extensions to humanitarian law.
Prisoners of war
The Geneva Convention relative to the Treatment of Prisoners of WarThird Geneva Convention
The Third Geneva Convention, relative to the treatment of prisoners of war, is one of the four treaties of the Geneva Conventions. It was first adopted in 1929, but was significantly updated in 1949...
, 12 August 1949 (GCIII) of 1949 defines the requirements for a captive to be eligible for treatment as a POW. A lawful combatant is a person who commits belligerent acts, and, when captured, is treated as a POW. An unlawful combatant is someone who commits belligerent acts but does not qualify for POW status under GCIII Articles 4 and 5.
These terms thus divide combatants in a war zone into two classes: those in armies and organised militias and the like (lawful combatants), and those who are not. The critical distinction is that a "lawful combatant" (defined above) cannot be held personally responsible for violations of civilian laws that are permissible under the laws and customs of war; and if captured, a lawful combatant has to be treated as a prisoner of war by the enemy Power under the conditions laid down in the Third Geneva Convention.
If there is any doubt about whether a detained alleged combatant is a "lawful combatant" then the combatant must be held as a prisoner of war until his or her status has been determined by "a competent tribunal". If that tribunal rules that a combatant is an "unlawful combatant" then the person's status changes to that of a civilian which may give them some rights under the Fourth Geneva Convention
Fourth Geneva Convention
The Geneva Convention relative to the Protection of Civilian Persons in Time of War, commonly referred to as the Fourth Geneva Convention and abbreviated as GCIV, is one of the four treaties of the Geneva Conventions. It was adopted in August 1949, and defines humanitarian protections for civilians...
.
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 the Geneva Convention Relative to the Protection of Civilian Persons in Time of WarFourth Geneva Convention
The Geneva Convention relative to the Protection of Civilian Persons in Time of War, commonly referred to as the Fourth Geneva Convention and abbreviated as GCIV, is one of the four treaties of the Geneva Conventions. It was adopted in August 1949, and defines humanitarian protections for civilians...
, 12 August 1949 (GCIV), if they qualify as a "protected person".
If the individual fulfills the criteria as a protected person, they are entitled to all the protections mentioned in GCIV. It should be emphasised that, in a war zone, a national of a neutral state, with normal diplomatic representation, is not a protected person under GCIV.
If a combatant does not qualify as a POW, then, if they qualify as a protected person, they receive all the rights which a non-combatant civilian receives under GCIV, but the party to the conflict may invoke Articles of GCIV to curtail those rights. The relevant Articles are 5 and 42.
It is likely that if they are found to be an "unlawful combatant" by "a competent tribunal" under GCIII Article 5, and if 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 a "fair and regular trial", the individual in question is 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 of GCIV, the party may invoke Article 42 of GCIV and use "internment" to detain the "unlawful combatant".
For those nations that have ratified Protocol I
Protocol I
Protocol I is a 1977 amendment protocol to the Geneva Conventions relating to the protection of victims of international armed conflicts. It reaffirms the international laws of the original Geneva Conventions of 1949, but adds clarifications and new provisions to accommodate developments in modern...
of the Geneva Conventions, are also bound by Article 45.3 of that protocol which curtails GCIV Article 5.
Persons who are not prisoners of war in an internal conflict
Civilians are covered by GCIV Article 3:Combatants who do not qualify for Prisoner Of War status
If the combatant is engaged in "armed conflict not of an international character" then under the Article 3 of the general provisions of the Geneva Conventions they should be "treated humanely", and if tried "sentences must ... be pronounced by a regularly constituted court"The last time that American and British unlawful combatants were executed after "a regularly constituted court" was the Luanda Trial
Luanda Trial
The Luanda Trial was a trial held in Luanda, Angola in June and July 1976 by the Popular Movement for the Liberation of Angola , recently victorious in the Angolan War of Independence, to prosecute thirteen foreign mercenaries who had served its defeated rival, the National Liberation Front of...
as mercenaries.
Parole violation
A combatant who is a POW, and who is subsequently paroled on the condition that he will not take up arms against the belligerent power (or co-belligerent powers) that had held him as a prisoner, is considered a parole violator if he breaks said condition. He is regarded as guilty of a breach in the laws and customs of war, unless there are mitigating circumstances such as coercion by his state to break his parole. As with other combatants, he is still protected by the Third Geneva ConventionThird Geneva Convention
The Third Geneva Convention, relative to the treatment of prisoners of war, is one of the four treaties of the Geneva Conventions. It was first adopted in 1929, but was significantly updated in 1949...
(GCIII), until a competent tribunal finds him to be in violation of his parole.
The Geneva Convention (1929)
Geneva Convention (1929)
The Geneva Convention was signed at Geneva, July 27, 1929. Its official name is the Convention relative to the Treatment of Prisoners of War, Geneva July 27, 1929. It entered into force 19 June 1931. It is this version of the Geneva Conventions which covered the treatment of prisoners of war...
made no mention of parole, but as it was supplemental to the Hague conventions, it relied on the wording of Hague to address this issue. The authors of GCIII, 1949, decided to include a reference with some modification to parole, because during the Second World War, some belligerent countries did permit such release to some extent.
Article 21 of GCIII (1949) reproduces the Articles 10 and 11 of the Have IV: Regulations Respecting the Laws and Customs of War on Land, 18 October 1907, but did not include Article 12, which provides: "Prisoners of war liberated on parole and recaptured bearing arms against the Government to whom they had pledged their honour, or against the allies of that Government, forfeit their right to be treated as prisoners of war, and can be brought before the courts." Nevertheless, contained in the commentary on GCIII: The only safeguard available to a parole violator—who has been coerced into fighting, and who has been recaptured by the Power that detained him previously—is contained in the procedural guarantees to which he is entitled, pursuant to Article 85 of GCIII.
In the opinion of Major Gary D. Brown, United States Air Force (USAF), this means that "[T]he Hague Convention specified that parole breakers would forfeit their right to be treated as prisoners of war if recaptured. The 1949 Geneva Convention is less direct on the issue. A recaptured parole violator under the Convention would be afforded the opportunity to defend himself against charges of parole breaking. In the interim, the accused violator would be entitled to P[o]W status."
Mercenaries
Under Article 47 of Protocol IProtocol I
Protocol I is a 1977 amendment protocol to the Geneva Conventions relating to the protection of victims of international armed conflicts. It reaffirms the international laws of the original Geneva Conventions of 1949, but adds clarifications and new provisions to accommodate developments in modern...
(Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts) it is stated in the first sentence "A mercenary
Mercenary
A mercenary, is a person who takes part in an armed conflict based on the promise of material compensation rather than having a direct interest in, or a legal obligation to, the conflict itself. A non-conscript professional member of a regular army is not considered to be a mercenary although he...
shall not have the right to be a combatant or a prisoner of war."
On 4 December 1989 the United Nations passed resolution 44/34 the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. It entered into force on 20 October 2001 and is usually known as the UN Mercenary Convention
UN Mercenary Convention
At the 72nd plenary meeting on 4 December 1989 the United Nations General Assembly passed resolution 44/34, the International Convention against the Recruitment, Use, Financing and Training of Mercenaries...
. Article 2 makes it an offence to employ a mercenary and Article 3.1 states that "A mercenary, as defined in article 1 of the present Convention, who participates directly in hostilities or in a concerted act of violence, as the case may be, commits an offence for the purposes of the Convention."
Child soldiers
The United NationsUnited Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
Convention on the Rights of the Child
Convention on the Rights of the Child
The United Nations Convention on the Rights of the Child is a human rights treaty setting out the civil, political, economic, social, health and cultural rights of children...
, Article 38, (1989) proclaimed: "State parties shall take all feasible measures to ensure that persons who have not attained the age of 15 years do not take a direct part in hostilities".
In a 2003 briefing for the 4th UN Security Council open debate on children and armed conflict by Human Rights Watch
Human Rights Watch
Human Rights Watch is an international non-governmental organization that conducts research and advocacy on human rights. Its headquarters are in New York City and it has offices in Berlin, Beirut, Brussels, Chicago, Geneva, Johannesburg, London, Los Angeles, Moscow, Paris, San Francisco, Tokyo,...
they state in their introduction that:
- In recent years progress has been made in developing a legal and policy framework for protecting children involved in armed conflict. The Optional Protocol to the Convention on the Rights of the Child on children in armed conflict, which came into force in February 2002, prohibits the direct use of any child under the age of 18 in armed conflict and prohibits all use of under-18s by non-state armed groups. By mid-December 2003, 67 states had ratified the Optional Protocol, including seven mentioned in this report (The seven are: Afghanistan, Democratic Republic of Congo, Philippines, Rwanda, Sierra Leone, Sri Lanka and Uganda). The UN Committee on the Rights of the Child had begun examining governments’ reports on steps taken to implement the Protocol. [Articles 8(2)(b)(xxvi), (e)(vii) of] the Rome Statute of the International Criminal CourtInternational Criminal CourtThe International Criminal Court is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression .It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the...
(1998) defines the recruitment of children under the age of 15 as a war crime.
On 26 July 2005, the United Nations Security Council unanimously passed UN Security Council Resolution 1612, the sixth in a series of resolutions about children and armed conflict. Resolution 1612 established the first comprehensive monitoring and reporting system for enforcing compliance among those groups using child soldiers in armed conflict.
United States
There are two separate issues to be determined in evaluating the category "unlawful combatant" as applied by the government of the United States. One issue is whether such a category could exist without violating the Geneva Conventions, and if such a category does exist, what steps the United States executive branch needs to take to comply with municipal lawMunicipal law
Municipal law is the national, domestic, or internal law of a sovereign state defined in opposition to international law. Municipal law includes not only law at the national level, but law at the state, provincial, territorial, regional or local levels...
s as interpreted by the judicial branch of the United States government.
1942 Quirin case
The term unlawful combatant has been used for the past century in legal literature, military manuals and case law. The term "unlawful combatants" was first used in US municipal law in a 1942 United States Supreme Court decision in the case ex parte QuirinEx parte Quirin
Ex parte Quirin, , is a Supreme Court of the United States case that upheld the jurisdiction of a United States military tribunal over the trial of several Operation Pastorius German saboteurs in the United States...
. In this case, the Supreme Court upheld the jurisdiction of a U.S. military tribunal over the trial of several German saboteurs
Sabotage
Sabotage is a deliberate action aimed at weakening another entity through subversion, obstruction, disruption, or destruction. In a workplace setting, sabotage is the conscious withdrawal of efficiency generally directed at causing some change in workplace conditions. One who engages in sabotage is...
in the US. This decision states (emphasis added and footnotes removed):
The validity of this case, as basis for denying prisoners in the War on Terrorism
War on Terrorism
The War on Terror is a term commonly applied to an international military campaign led by the United States and the United Kingdom with the support of other North Atlantic Treaty Organisation as well as non-NATO countries...
protection by the Geneva Conventions, has been disputed. A report by the American Bar Association
American Bar Association
The American Bar Association , founded August 21, 1878, is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. The ABA's most important stated activities are the setting of academic standards for law schools, and the formulation...
commenting on this case, states:
Since the 1942 Quirin case, the US signed and ratified the 1949 Geneva Conventions
Geneva Conventions
The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of the victims of war...
, which are, therefore, considered to be a part of US municipal law, in accordance with the Supremacy Clause
Supremacy Clause
Article VI, Clause 2 of the United States Constitution, known as the Supremacy Clause, establishes the U.S. Constitution, U.S. Treaties, and Federal Statutes as "the supreme law of the land." The text decrees these to be the highest form of law in the U.S...
in the Constitution of the United States. In addition the US Supreme Court invalidated this premise, in Hamdan v. Rumsfeld
Hamdan v. Rumsfeld
Hamdan v. Rumsfeld, 548 U.S. 557 , is a case in which the Supreme Court of the United States held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military...
, by ruling that Common Article Three of the Geneva Conventions applies to detainees in the War on Terror, and that the Military Tribunals
Guantanamo military commission
The Guantanamo military commissions are military tribunals created by the Military Commissions Act of 2006 for prosecuting detainees held in the United States Guantanamo Bay detainment camps.- History :...
used to try these suspects were in violation of US and international law.
Congress addressed these issues in the Military Commissions Act of 2006
Military Commissions Act of 2006
The United States Military Commissions Act of 2006, also known as HR-6166, was an Act of Congress signed by President George W. Bush on October 17, 2006. Drafted in the wake of the Supreme Court's decision on Hamdan v...
, so that enemy combatants and unlawful enemy combatants might be tried under military commissions; however, on 12 June 2008, the Supreme Court ruled, in Boumediene v. Bush
Boumediene v. Bush
Boumediene v. Bush, 553 U.S. 723 , was a writ of habeas corpus submission made in a civilian court of the United States on behalf of Lakhdar Boumediene, a naturalized citizen of Bosnia and Herzegovina, held in military detention by the United States at the Guantanamo Bay detention camps in Cuba...
, that Guantanamo Bay captives were entitled to access the US justice system, and that the military commissions as constituted under the Military Commissions Act of 2006 fell short of what was required of a court under the United States constitution (see the section below for more details).
2001 Presidential military order
In the wake of the September 11, 2001 attacksSeptember 11, 2001 attacks
The September 11 attacks The September 11 attacks The September 11 attacks (also referred to as September 11, September 11th or 9/119/11 is pronounced "nine eleven". The slash is not part of the pronunciation...
, the United States Congress passed a resolution known as the Authorization for Use of Military Force (AUMF) on 18 September 2001. In this, Congress invoked the War Powers Resolution
War Powers Resolution
The War Powers Resolution of 1973 is a federal law intended to check the power of the President in committing the United States to an armed conflict without the consent of Congress. The resolution was adopted in the form of a United States Congress joint resolution; this provides that the...
and stated:
- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Using the authorization granted to him by Congress, on 13 November 2001, President Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
issued a Presidential Military Order: "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism
Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism
On November 13, 2001 U.S. President George W. Bush issued a Military Order entitled Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.The order:#Defines which individuals the President considers subject to the order....
" which allowed "individuals ... to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals
Combatant Status Review Tribunal
The Combatant Status Review Tribunals were a set of tribunals for confirming whether detainees held by the United States at the Guantanamo Bay detention camp had been correctly designated as "enemy combatants". The CSRTs were established July 7, 2004 by order of U.S. Deputy Secretary of Defense...
", where such individuals are a member of the organization known as al Qa'ida; or has conspired or committed acts of international terrorism, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy. The order also specifies that the detainees are to be treated humanely.
The length of time for which a detention of such individuals can continue before being tried by a military tribunal is not specified in the military order. The military order uses the term "detainees" to describe the individuals detained under the military order. The U.S. administration chooses to describe the detainees held under the military order as "illegal enemy combatants".
With the U.S. invasion of Afghanistan
War in Afghanistan (2001–present)
The War in Afghanistan began on October 7, 2001, as the armed forces of the United States of America, the United Kingdom, Australia, and the Afghan United Front launched Operation Enduring Freedom...
some lawyers in the Justice Department
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
's Office of Legal Counsel and in the office of White House
White House
The White House is the official residence and principal workplace of the president of the United States. Located at 1600 Pennsylvania Avenue NW in Washington, D.C., the house was designed by Irish-born James Hoban, and built between 1792 and 1800 of white-painted Aquia sandstone in the Neoclassical...
counsel Alberto Gonzales
Alberto Gonzales
Alberto R. Gonzales was the 80th Attorney General of the United States. Gonzales was appointed to the post in February 2005 by President George W. Bush. Gonzales was the first Hispanic Attorney General in U.S. history and the highest-ranking Hispanic government official ever...
advised President Bush that he did not have to comply with the Geneva Conventions in handling detainees in the War on Terrorism
War on Terrorism
The War on Terror is a term commonly applied to an international military campaign led by the United States and the United Kingdom with the support of other North Atlantic Treaty Organisation as well as non-NATO countries...
. This applied not only to members of al Qa'ida but the entire Taliban, because, they argued, Afghanistan was a "failed state."
Despite opposition from the U.S. State Department, which warned against ignoring the Geneva Conventions, the Bush administration
George W. Bush administration
The presidency of George W. Bush began on January 20, 2001, when he was inaugurated as the 43rd President of the United States of America. The oldest son of former president George H. W. Bush, George W...
thenceforth began holding such individuals captured in Afghanistan under the military order and not under the usual conditions of Prisoners of War. For those U.S. citizens detained under the military order, US officials, such as Vice President Dick Cheney
Dick Cheney
Richard Bruce "Dick" Cheney served as the 46th Vice President of the United States , under George W. Bush....
, argue that the urgency of the post-9/11 environment called for such tactics in administration's war against terrorism.
Most of the individuals detained by the U.S. military on the orders of the U.S. administration were initially captured in Afghanistan. The foreign detainees are held in the Guantanamo Bay detention camp established for the purpose at the Guantanamo Bay Naval Base
Guantanamo Bay Naval Base
Guantanamo Bay Naval Base is located on of land and water at Guantánamo Bay, Cuba which the United States leased for use as a coaling station following the Cuban-American Treaty of 1903. The base is located on the shore of Guantánamo Bay at the southeastern end of Cuba. It is the oldest overseas...
, Cuba
Cuba
The Republic of Cuba is an island nation in the Caribbean. The nation of Cuba consists of the main island of Cuba, the Isla de la Juventud, and several archipelagos. Havana is the largest city in Cuba and the country's capital. Santiago de Cuba is the second largest city...
. Guantanamo was chosen because, although it is under the de facto control of the United States administration, it is not a sovereign territory
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
of the United States, and a previous Supreme Court ruling Johnson v. Eisentrager
Johnson v. Eisentrager
Johnson v. Eisentrager, 339 U.S. 763 , was a major decision of the U.S. Supreme Court, where it decided that U.S. courts had no jurisdiction over German war criminals held in a U.S.-administered German prison...
in 1950 had ruled that U.S. courts had no jurisdiction over enemy aliens held outside the USA.
In Rasul v. Bush
Rasul v. Bush
Rasul v. Bush, 542 U.S. 466 , is a landmark United States Supreme Court decision establishing that the U.S. court system has the authority to decide whether foreign nationals held in Guantanamo Bay were wrongfully imprisoned...
the Supreme Court ruled that "the US Guantanamo Bay, Cuba, Naval Base, which the United States occupies under a lease and treaty recognizing Cuba's ultimate sovereignty, but giving this country complete jurisdiction and control for so long as it does not abandon the leased areas." and that as the United States had complete jurisdiction, the federal courts has the authority under the federal habeas corpus statute to decide whether foreign nationals (non-U.S. citizens) held in Guantanamo Bay were rightfully imprisoned. This ruling largely overturned the judicial advantage for the U.S. administration of using the Naval Base, that Johnson v. Eisentrager
Johnson v. Eisentrager
Johnson v. Eisentrager, 339 U.S. 763 , was a major decision of the U.S. Supreme Court, where it decided that U.S. courts had no jurisdiction over German war criminals held in a U.S.-administered German prison...
seemed to have conferred.
Legal challenges
There have been a number of legal challenges made on behalf of the detainees held in Guantanamo Bay detention camp and in other places. These include:- On 30 July 2002, the U.S. District Court for the District of Columbia ruled in Rasul v. BushRasul v. BushRasul v. Bush, 542 U.S. 466 , is a landmark United States Supreme Court decision establishing that the U.S. court system has the authority to decide whether foreign nationals held in Guantanamo Bay were wrongfully imprisoned...
, that it did not have jurisdiction because Guantanamo Bay Naval Base is not a sovereign territory of the United States. This decision was appealed to the D.C. Circuit Court of Appeals, which upheld the decision, (along with a related case in March 2003 — see Al-Odah v. United States). Rasul v. Bush was appealed to the United States Supreme Court on 2 September 2003. - On 10 November 2003, the United States Supreme Court announced that it would decide on appeals by Afghan war detainees who challenge their continued incarceration at Guantanamo Bay Naval Base as being unlawful, (See Rasul v. BushRasul v. BushRasul v. Bush, 542 U.S. 466 , is a landmark United States Supreme Court decision establishing that the U.S. court system has the authority to decide whether foreign nationals held in Guantanamo Bay were wrongfully imprisoned...
). - On 10 January 2004, 175 members of both houses of Parliament in the UK filed an amici curiaeAmicus curiaeAn amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...
brief to support the detainees' access to US jurisdiction. - On 28 June 2004, the Supreme Court ruled in Rasul v. BushRasul v. BushRasul v. Bush, 542 U.S. 466 , is a landmark United States Supreme Court decision establishing that the U.S. court system has the authority to decide whether foreign nationals held in Guantanamo Bay were wrongfully imprisoned...
that detainees in Guantanamo Bay Naval Base could turn to U.S. courts to challenge their confinement, but can also be held without charges or trial. - On 7 July 2004, In response to the Supreme Court ruling, the Pentagon announced that cases would be reviewed by military tribunals, in compliance with Article 5 of the Third Geneva Convention.
- On 8 November 2004, a federal court halted the proceeding of Salim Ahmed Hamdan, 34, of Yemen. Hamdan was to be the first Guantanamo detainee tried before a military commission. Judge James RobertsonJames Robertson (judge)James Robertson is a United States federal judge serving on the United States District Court for the District of Columbia.Born in Cleveland, Ohio, Robertson graduated from Western Reserve Academy in Hudson, Ohio, and received a B.A. from Princeton University in 1959. He served in the United States...
of the U.S. District Court for the District of Columbia ruled in Hamdan v. RumsfeldHamdan v. RumsfeldHamdan v. Rumsfeld, 548 U.S. 557 , is a case in which the Supreme Court of the United States held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military...
that no competent tribunal had found that Hamdan was not a prisoner of war under the Geneva Conventions. - By 29 March 2005, all detainees at the Guantanamo Bay Naval Base had received hearings before Combatant Status Review TribunalCombatant Status Review TribunalThe Combatant Status Review Tribunals were a set of tribunals for confirming whether detainees held by the United States at the Guantanamo Bay detention camp had been correctly designated as "enemy combatants". The CSRTs were established July 7, 2004 by order of U.S. Deputy Secretary of Defense...
s. The hearings resulted in the release of 38 detainees, and confirmed the enemy combatant status of 520 detainees. ReutersReutersReuters is a news agency headquartered in New York City. Until 2008 the Reuters news agency formed part of a British independent company, Reuters Group plc, which was also a provider of financial market data...
reported on 15 June 2005 only four detainees had been charged and that Joseph Margulies, one of the lawyers for the detainees said "The (reviews) are a sham,... They mock this nation's commitment to due process, and it is past time for this mockery to end".
Yaser Hamdi was captured in Afghanistan
Afghanistan
Afghanistan , officially the Islamic Republic of Afghanistan, is a landlocked country located in the centre of Asia, forming South Asia, Central Asia and the Middle East. With a population of about 29 million, it has an area of , making it the 42nd most populous and 41st largest nation in the world...
in 2001. He was taken to Guantanamo Bay Naval Base, but was transferred to jails in Virginia and South Carolina after it became known that he was a U.S. citizen. On 23 September 2004, the United States Justice Department agreed to release Hamdi to Saudi Arabia
Saudi Arabia
The Kingdom of Saudi Arabia , commonly known in British English as Saudi Arabia and in Arabic as as-Sa‘ūdiyyah , is the largest state in Western Asia by land area, constituting the bulk of the Arabian Peninsula, and the second-largest in the Arab World...
, where he is also a citizen, on the condition that he gave up his U.S. citizenship. The deal also bars Hamdi from visiting certain countries and to inform Saudi officials if he plans to leave the kingdom. He was a party to a Supreme Court decision Hamdi v. Rumsfeld
Hamdi v. Rumsfeld
Hamdi v. Rumsfeld, 542 U.S. 507 was a U.S. Supreme Court decision reversing the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an "illegal enemy combatant." The Court recognized the power of the government to detain enemy...
which issued a decision on 28 June 2004, repudiating the U.S. government's unilateral assertion of executive authority to suspend the constitutional protections of individual liberty of a U.S. citizen. The Court recognized the power of the government to detain unlawful combatants, but ruled that detainees must have the ability to challenge their detention before an impartial judge. Though no single opinion of the Court commanded a majority, eight of the nine justices of the Court agreed that the Executive Branch does not have the power to hold indefinitely a U.S. citizen without basic due process protections enforceable through judicial review.
On 8 May 2002, José Padilla, also known as Abdullah al-Muhajir, was arrested by FBI agents at Chicago
Chicago
Chicago is the largest city in the US state of Illinois. With nearly 2.7 million residents, it is the most populous city in the Midwestern United States and the third most populous in the US, after New York City and Los Angeles...
's O'Hare International Airport
O'Hare International Airport
Chicago O'Hare International Airport , also known as O'Hare Airport, O'Hare Field, Chicago Airport, Chicago International Airport, or simply O'Hare, is a major airport located in the northwestern-most corner of Chicago, Illinois, United States, northwest of the Chicago Loop...
and held as material witness on the warrant issued in New York State about the 2001 9/11 attacks. On 9 June 2002 President Bush issued an order to Secretary Rumsfeld to detain Padilla as an "enemy combatant". The order legally justified the detention by leaning on the AUMF which authorized the President to "..use all necessary force against those nations, organizations, or persons..." and in the opinion of the administration a U.S. citizen can be an enemy combatant (This was decided by the United States Supreme Court in the case of Ex Parte Quirin). Padilla is being detained in Miami and is accused of providing material support for terrorism
Providing material support for terrorism
Providing material support for terrorism is a provision of the USA PATRIOT Act which prohibits material support to groups designated as terrorists. The four types of support described are “training,” “expert advice or assistance,” “service,” and “personnel.” In June 2010 the United States Supreme...
.
- The 13 November 2001, Military Order, mentioned above, exempts U.S. citizens from trial by military tribunals to determine if they are "unlawful combatants", which indicates that Padilla and Yaser Hamdi would end up in the civilian criminal justice system, as happened with John Walker LindhJohn Walker LindhJohn Phillip Walker Lindh is a United States citizen who was captured as an enemy combatant during the United States' 2001 invasion of Afghanistan. He is now serving a 20-year prison sentence in connection with his participation in Afghanistan's Taliban army...
. - On 18 December 2003, the Second Circuit Court of Appeals declared that the Bush Administration lacked the authority to detain a U.S. citizen arrested on U.S. soil as an "illegal enemy combatant" without clear congressional authorization (per (a)); it consequently ordered the government to release Padilla from military custody within thirty days. But agreed that he could be held until an appeal was heard.
- On 20 February 2004, the Supreme Court agreed to hear the government's appeal.
- The Supreme Court heard the case, Rumsfeld v. PadillaRumsfeld v. PadillaRumsfeld v. Padilla, , was a United States Supreme Court case, in which José Padilla sought habeas corpus relief against Secretary of Defense Donald Rumsfeld, as a result of his detainment as an "unlawful combatant."...
, in April 2004, but on 28 June it was thrown out on a technicality. The court declared that New York State, where the case was originally filed, was an improper venue and that the case should have been filed in South Carolina, where Padilla was being held. - On 28 February 2005, in Spartanburg, South CarolinaSouth CarolinaSouth Carolina is a state in the Deep South of the United States that borders Georgia to the south, North Carolina to the north, and the Atlantic Ocean to the east. Originally part of the Province of Carolina, the Province of South Carolina was one of the 13 colonies that declared independence...
, U.S. District Judge Henry Floyd ordered the Bush administration to either charge Padilla or release him. He relied on the Supreme Court's ruling in the parallel enemy combatant case of Yaser Hamdi (Hamdi v. Rumsfeld), in which the majority decision declared a "state of war is not a blank check for the president when it comes to the rights of the nation's citizens." - On 19 July 2005, in Richmond, VirginiaRichmond, VirginiaRichmond is the capital of the Commonwealth of Virginia, in the United States. It is an independent city and not part of any county. Richmond is the center of the Richmond Metropolitan Statistical Area and the Greater Richmond area...
, the Fourth Circuit Court of Appeals began hearing the government's appeal of the lower court (the District of South Carolina, at Charleston) ruling by Henry F. Floyd, District Judge, (CA-04-2221-26AJ). Their ruling, decided 9 September 2005, was that "the President does possess such authority pursuant to the Authorization for Use of Military Force Joint Resolution enacted by Congress in the wake of the attacks on the United States of September 11, 2001. Accordingly, the judgment of the district court is reversed." - In Hamdan v. RumsfeldHamdan v. RumsfeldHamdan v. Rumsfeld, 548 U.S. 557 , is a case in which the Supreme Court of the United States held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military...
(29 June 2006) the US Supreme Court did not rule on the subject of unlawful combatant status but did reaffirm that the US is bound by the Geneva ConventionsGeneva ConventionsThe Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of the victims of war...
. Most notably it said that Common Article 3 of the Geneva Convention, regarding the treatment of detainees, applies to all prisoners in the War on Terror.
- see also USA PATRIOT ActUSA PATRIOT ActThe USA PATRIOT Act is an Act of the U.S. Congress that was signed into law by President George W. Bush on October 26, 2001...
Combatant Status Review Tribunal
- see also Combatant Status Review TribunalCombatant Status Review TribunalThe Combatant Status Review Tribunals were a set of tribunals for confirming whether detainees held by the United States at the Guantanamo Bay detention camp had been correctly designated as "enemy combatants". The CSRTs were established July 7, 2004 by order of U.S. Deputy Secretary of Defense...
Following the Hamdan v. Rumsfeld
Hamdan v. Rumsfeld
Hamdan v. Rumsfeld, 548 U.S. 557 , is a case in which the Supreme Court of the United States held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military...
-ruling (November 2004) the Bush administration has begun using Combatant Status Review Tribunals to determine the status of detainees. By doing so the obligation under Article 5 of the GCIII was to be addressed.
However, critics maintain these CSRTs are inadequate to warrant acceptance as "competent tribunal." Their principal arguments are:
- The CSRT conducted rudimentary proceedings
- The CSRT afforded detainees few basic protections
- Many detainees lacked counsel
- The CSRT also informed detainees only of general charges against them, while the details on which the CSRT premised enemy combatant status decisions were classified.
- Detainees had no right to present witnesses or to cross-examine government witnesses.
Notable cases pointed to by critics as demonstrating the flawed nature of the procedure include: Mustafa Ait Idir
Mustafa Ait Idir
Washington DC based Judge Joyce Hens Green extensively quoted a transcript from Idir's Combatant Status Review Tribunal when she decided that the Guantanamo tribunals violated the US Constitution.Ait Idr participated in his Administrative Review Board hearing....
, Moazzam Begg
Moazzam Begg
Moazzam Begg , is a British Pakistani Muslim who was held in extrajudicial detention in the Bagram Theater Internment Facility and the Guantanamo Bay detainment camp, in Cuba, by the U.S...
, Murat Kurnaz
Murat Kurnaz
On March 3, 2006, in response to a court order from Jed Rakoff the Department of Defense published a Summarized transcripts from his Combatant Status Review Tribunal.The tribunal that examined the case against Kurnaz lasted for forty minutes....
, Feroz Abbasi
Feroz Abbasi
Feroz Abbasi is one of nine British men who were held in extrajudicial detention in the United States Guantanamo Bay detainment camps, in Cuba. He was released from detention on 25 January 2005 along with Moazzam Begg, Martin Mubanga and Richard Belmar, the other five having previously been...
, and Martin Mubanga
Martin Mubanga
Martin Mubanga is a joint citizen of both the United Kingdom and Zambia. He was held, without charge, and interrogated at the American prison at Guantanamo Bay for 33 months....
. A comment by legal experts states:
- It appears ... that the procedures of the Combatant Status Review Tribunals do not qualify as status determination under the Third Geneva Convention. <......> The fact that no status determination had taken place according to the Third Geneva Convention was sufficient reason for a judge from the District Court of Columbia dealing with a habeas petition, to stay proceedings before a military commission. Judge Robertson in Hamdan v. Rumsfeld held that the Third Geneva Convention, which he considered selfexecuting, had not been complied with since a Combatant Status Review Tribunal could not be considered a ‘competent tribunal’ pursuant to article 5 of the Third Geneva Convention.
James Crisfield, the legal advisor to the Tribunals, offered his legal opinion, that CSRT "do not have the discretion to determine that a detainee should be classified as a prisoner of war — only whether the detainee satisfies the definition of 'enemy combatant'". Determining whether a captive should be classified as a prisoner of war is the sole purpose of a competent tribunal.
Analysis of these Tribunals by two lawyers for Guananamo detainees, Professor Mark P. Denbeaux of the Seton Hall University School of Law
Seton Hall University School of Law
The Seton Hall University School of Law is part of Seton Hall University, and is located in downtown Newark, New Jersey. Seton Hall Law School is the only private law school in New Jersey, and is the top-ranked of the three law schools in the state...
, his son Joshua Denbeaux, and some of his law students resulted in a report called No-hearing hearings
No-hearing hearings
No-hearing hearings is the title of a study published by Professor Mark P. Denbeaux of the Seton Hall University School of Law, his son Joshua Denbeaux, and some of his law students, on October 17, 2006....
. In essence it supports the criticism voiced above.
Military commissions
As of 17 October 2006, When President Bush signed the Military Commissions Act of 2006Military Commissions Act of 2006
The United States Military Commissions Act of 2006, also known as HR-6166, was an Act of Congress signed by President George W. Bush on October 17, 2006. Drafted in the wake of the Supreme Court's decision on Hamdan v...
into law, Title 10 of the United States Code was amended to include a definition of an "unlawful enemy combatant" as
The definition of a lawful enemy combatant is also given, and much of the rest of the law sets out the specific procedures for determining whether a given detainee of the U.S. armed forces is an unlawful enemy combatant and how such combatants may or may not be treated in general and tried for their crimes in particular. Among its more controversial provisions, the law stipulates that a non United States citizen held as an enemy combatant or is awaiting such determination may not seek habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
relief. Such detainees must simply wait until the military convene a detainee status review tribunal (under the procedures described in the Detainee Treatment Act of 2005).
Immediately after Bush signed the Act into law, the U.S. Justice Department notified the U.S. Court of Appeals for the District of Columbia that the Court no longer had jurisdiction over a combined habeas case that it had been considering since 2004. A notice dated the following day listed 196 other pending habeas cases for which it made the same claim.
Of the first three war crimes cases brought against Guantanamo Bay detainees under the Military Commissions Act, one resulted in a plea bargain
Plea bargain
A plea bargain is an agreement in a criminal case whereby the prosecutor offers the defendant the opportunity to plead guilty, usually to a lesser charge or to the original criminal charge with a recommendation of a lighter than the maximum sentence.A plea bargain allows criminal defendants to...
and the two others were dismissed on jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
al grounds.
On 4 June 2007, in two separate cases, military tribunals dismissed charges against detainees who had been designated as "enemy combatants" but not as "unlawful enemy combatants". The first case was that of Omar Khadr
Omar Khadr
Omar Ahmed Khadr is a Canadian child soldier and one of the juveniles held at the Guantanamo Bay detention camp. He was convicted of five charges under the United States Military Commissions Act of 2009 including murder in violation of the law of war and providing material support for terrorism,...
, a Canadian
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
who had been designated as an "enemy combatant" in 2004. Khadr was accused of throwing a grenade during a firefight in Afghanistan in 2002. Colonel
Colonel
Colonel , abbreviated Col or COL, is a military rank of a senior commissioned officer. It or a corresponding rank exists in most armies and in many air forces; the naval equivalent rank is generally "Captain". It is also used in some police forces and other paramilitary rank structures...
Peter Brownback
Peter Brownback
Peter E. Brownback III is a retired military officer and lawyer.He was appointed to be a Presiding Officer on the Guantanamo military commissions, by retired general John D. Altenburg....
ruled that the military tribunals, created to deal with "unlawful enemy combatants", had no jurisdiction over detainees who had been designated only as "enemy combatants". He dismissed without prejudice all charges against Khadr. Also on 4 June, Captain Keith J. Allred
Keith J. Allred
-Early Life and Career:Allred entered the Navy in 1979. He received his juris doctorate in 1985 from the University of Washington. He served in the U.S...
reached the same conclusion in the case of Salim Ahmed Hamdan
Salim Ahmed Hamdan
Salim Ahmed Hamdan is a Yemeni man, captured during the invasion of Afghanistan, and imprisoned at Guantanamo Bay. He admits to being Osama bin Laden's personal driver claiming he needed the $200 monthly salary that came with the job....
.
The United States Department of Defense
United States Department of Defense
The United States Department of Defense is the U.S...
responded by stating: "We believe that Congress intended to grant jurisdiction under the Military Commissions Act to individuals, like Mr. Khadr, who are being held as enemy combatants under existing C.S.R.T.
Combatant Status Review Tribunal
The Combatant Status Review Tribunals were a set of tribunals for confirming whether detainees held by the United States at the Guantanamo Bay detention camp had been correctly designated as "enemy combatants". The CSRTs were established July 7, 2004 by order of U.S. Deputy Secretary of Defense...
procedures." That position was called "dead wrong" by Specter.
Supreme Court ruling on Military Commissions Act of 2006
On 12 June 2008, the Supreme Court ruled, in Boumediene v. BushBoumediene v. Bush
Boumediene v. Bush, 553 U.S. 723 , was a writ of habeas corpus submission made in a civilian court of the United States on behalf of Lakhdar Boumediene, a naturalized citizen of Bosnia and Herzegovina, held in military detention by the United States at the Guantanamo Bay detention camps in Cuba...
, 5-4 that Guantanamo captives were entitled to access the US justice system. Justice Anthony Kennedy
Anthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
wrote in the majority opinion:
The Court also ruled that the Combatant Status Review Tribunals were "inadequate".
Ruth Bader Ginsburg
Ruth Bader Ginsburg
Ruth Joan Bader Ginsburg is an Associate Justice of the Supreme Court of the United States. Ginsburg was appointed by President Bill Clinton and took the oath of office on August 10, 1993. She is the second female justice and the first Jewish female justice.She is generally viewed as belonging to...
, Stephen Breyer
Stephen Breyer
Stephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court....
, David Souter
David Souter
David Hackett Souter is a former Associate Justice of the Supreme Court of the United States. He served from 1990 until his retirement on June 29, 2009. Appointed by President George H. W. Bush to fill the seat vacated by William J...
and John Paul Stevens
John Paul Stevens
John Paul Stevens served as an Associate Justice of the Supreme Court of the United States from December 19, 1975 until his retirement on June 29, 2010. At the time of his retirement, he was the oldest member of the Court and the third-longest serving justice in the Court's history...
joined Kennedy in the majority.
Chief Justice John Roberts, in the minority opinion, called the CSR Tribunals:
Samuel Alito
Samuel Alito
Samuel Anthony Alito, Jr. is an Associate Justice of the U.S. Supreme Court. He was nominated by President George W. Bush and has served on the court since January 31, 2006....
, Clarence Thomas
Clarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
and Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
joined Roberts in the dissent.
Vincent Warren, the executive director of the Center for Constitutional Rights
Center for Constitutional Rights
Al Odah v. United States:Al Odah is the latest in a series of habeas corpus petitions on behalf of people imprisoned at the Guantanamo Bay detention center. The case challenges the Military Commissions system’s suitability as a habeas corpus substitute and the legality, in general, of detention at...
, the organization that initiated the action that triggered the Supreme Court ruling responded:
2009
In January and February 2009, President Barack ObamaBarack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
's nominees for Attorney General
United States Attorney General
The United States Attorney General is the head of the United States Department of Justice concerned with legal affairs and is the chief law enforcement officer of the United States government. The attorney general is considered to be the chief lawyer of the U.S. government...
and Solicitor General
United States Solicitor General
The United States Solicitor General is the person appointed to represent the federal government of the United States before the Supreme Court of the United States. The current Solicitor General, Donald B. Verrilli, Jr. was confirmed by the United States Senate on June 6, 2011 and sworn in on June...
, Eric Holder
Eric Holder
Eric Himpton Holder, Jr. is the 82nd and current Attorney General of the United States and the first African American to hold the position, serving under President Barack Obama....
and Elena Kagan
Elena Kagan
Elena Kagan is an Associate Justice of the Supreme Court of the United States, serving since August 7, 2010. Kagan is the Court's 112th justice and fourth female justice....
, both testified they agreed the U.S. government may detain combatants in accordance with the laws of war until the end of the war, (this sidesteps the issue of deciding whether the combatant is a lawful or unlawful combatant and the need to try them). When asked by Senator Lindsey Graham
Lindsey Graham
Lindsey Olin Graham is the senior U.S. Senator from South Carolina and a member of the Republican Party. Previously he served as the U.S. Representative for .-Early life, education and career:...
"If our intelligence agencies should capture someone in the Philippines that is suspected of financing Al Qaeda worldwide, would you consider that person part of the battlefield?" Both Holder and Kagan said that they would.
Other countries
IsraelIsrael
The State of Israel is a parliamentary republic located in the Middle East, along the eastern shore of the Mediterranean Sea...
, since the 2002 "Imprisonment of Illegal Combatants Law", makes theoretical distinctions between lawful and unlawful combatants and the legal status thereof.
The United Kingdom Crown Prosecution Service
Crown Prosecution Service
The Crown Prosecution Service, or CPS, is a non-ministerial department of the Government of the United Kingdom responsible for public prosecutions of people charged with criminal offences in England and Wales. Its role is similar to that of the longer-established Crown Office in Scotland, and the...
(CPS) makes the distinction. The CPS conducted a "through review of the evidence concerning the deaths of Sergeant Steven Roberts of the 2nd Royal Tank Regiment and Mr Zaher Zaher, an Iraqi national, at Az Zubayr, Iraq on 24 March 2003":
International criticism of unlawful combatant status
The designation of some prisoners as "unlawful combatants", has been the subject of criticism by international human rights institutions; including Amnesty InternationalAmnesty International
Amnesty International is an international non-governmental organisation whose stated mission is "to conduct research and generate action to prevent and end grave abuses of human rights, and to demand justice for those whose rights have been violated."Following a publication of Peter Benenson's...
, Human Rights Watch
Human Rights Watch
Human Rights Watch is an international non-governmental organization that conducts research and advocacy on human rights. Its headquarters are in New York City and it has offices in Berlin, Beirut, Brussels, Chicago, Geneva, Johannesburg, London, Los Angeles, Moscow, Paris, San Francisco, Tokyo,...
and the International Committee of the Red Cross
International Committee of the Red Cross
The International Committee of the Red Cross is a private humanitarian institution based in Geneva, Switzerland. States parties to the four Geneva Conventions of 1949 and their Additional Protocols of 1977 and 2005, have given the ICRC a mandate to protect the victims of international and...
.
In response to the US-led military campaign in Afghanistan, a legal advisor at the Legal Division of the ICRC, published a paper on the subject, in which it states:
- 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.
Human Rights Watch have pointed out that in a judgement, the International Criminal Tribunal for the Former Yugoslavia
International Criminal Tribunal for the former Yugoslavia
The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, more commonly referred to as the International Criminal Tribunal for the former Yugoslavia or ICTY, is a...
interpreted the International Committee of the Red Cross, Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva: 1958) to mean that:
- there is no gap between the Third and Fourth Geneva Conventions. If an individual is not entitled to the protection of the Third Convention as a prisoner of war ... he or she necessarily falls within the ambit of [the Fourth Convention], provided that its article 4 requirements [defining a protected person] are satisfied.
This does not mean that the status of unlawful combatant does not exist because in the opinion of the ICRC "If civilians directly engage in hostilities, they are considered 'unlawful' or 'unprivileged' combatants or belligerents ... [and] They may be prosecuted under the domestic law of the detaining state for such action".
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
Liberia
Liberia , officially the Republic of Liberia, is a country in West Africa. It is bordered by Sierra Leone on the west, Guinea on the north and Côte d'Ivoire on the east. Liberia's coastline is composed of mostly mangrove forests while the more sparsely populated inland consists of forests that open...
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.
See also
- Irregular militaryIrregular militaryIrregular military refers to any non-standard military. Being defined by exclusion, there is significant variance in what comes under the term. It can refer to the type of military organization, or to the type of tactics used....
- Targeted killingTargeted killingTargeted killing is the deliberate, specific targeting and killing, by a government or its agents, of a supposed terrorist or of a supposed "unlawful combatant" who is not in that government's custody...
USA specific
- Criticisms of the War on Terrorism
- Enemy CombatantEnemy combatantEnemy combatant is a term historically referring to members of the armed forces of the state with which another state is at war. Prior to 2008, the definition was: "Any person in an armed conflict who could be properly detained under the laws and customs of war." In the case of a civil war or an...
and No longer enemy combatant - Military Police: Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other DetaineesMilitary Police: Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other DetaineesMilitary Police: Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees is the full title of a United States Army regulation usually referred to as AR 190-8, that lays out how the United States Army should treat captives....
- Seton Hall study
Further reading
- 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 ICRCInternational Committee of the Red CrossThe International Committee of the Red Cross is a private humanitarian institution based in Geneva, Switzerland. States parties to the four Geneva Conventions of 1949 and their Additional Protocols of 1977 and 2005, have given the ICRC a mandate to protect the victims of international and...
, March 2003 - Michael Dorf: What is an "Unlawful combatant," and why it matters: The Status Of Detained Al Qaeda And Taliban Fighters Published by FindLaw 23 January 2002. Dorf is Vice Dean and Professor of Law at Columbia University.
- Thomas J. Lepri, Fordham Law Review, Volume 71, Issue 6 (2003), page 2565
- The Yale Law Journal: A Small Problem of Precedent: per 18 U.S.C. § 4001(a) and the Detention of U.S. Citizen "Enemy Combatants" (PDF)
- AI Index: AMR 51/063/2005: UNITED STATES OF AMERICA Guantanamo and beyond: The continuing pursuit of unchecked executive power document, dated 13 May 2005, by Amnesty InternationalAmnesty InternationalAmnesty International is an international non-governmental organisation whose stated mission is "to conduct research and generate action to prevent and end grave abuses of human rights, and to demand justice for those whose rights have been violated."Following a publication of Peter Benenson's...
on their web site. - U.S. DOD: Combatant Status Review Tribunals/Administrative Review Boards
- Jane Mayer: The Memo - How an internal effort to ban the abuse and torture of detainees was thwarted, The New YorkerThe New YorkerThe New Yorker is an American magazine of reportage, commentary, criticism, essays, fiction, satire, cartoons and poetry published by Condé Nast...
article, posted 20 February 2006 - An Open Letter to George Bush partly on this issue
- League of Nations Non-intervention Committee ban on "volunteers" 21 February 1937