The International Law of War and America'S War On Terrorism: Nicholas Kittrie

the international law of
war and America’s war on

terrorism
Nicholas Kittrie University Professor

American University Law School
Washington, DC 20016
USA
Nicholas Kittrie, Distinguished University Professor at the American University School of

Law and former Counsel to the United States Senate Judiciary Committee, is editor of the
forthcoming The Law of War and the Law of Peace: A Documentary Sourcebook. Dr. Kittrie
is Chairman of the Eleanor Roosevelt Institute for Justice and Peace and past President
of the American Society of Criminology. Kittrie’s other books include The Future of Peace
in the Twenty-First Century, Crescent and Star: Arab‑Israeli Perspectives on the Middle East
Conflict; Sanctions, Sentencing and Corrections; and The War Against Authority: From the
Crisis of Legitimacy to a New Social Contract.
This article is contributed as a “Tribute to Andrezj Werner,” the Founder of the Jean de
Bloch Society in Warsaw, Poland and a fighter for justice and peace.
—Nicholas N. Kittrie, KStJ
The events of 9/11 perpetrated by privileged and

Al Qaeda, a non-state actor, and the
subsequent capture of “terrorists”
unprivileged/
by U.S. forces and detention in unlawful combatants
Guantanamo, raises questions
about how international law should Some 270 men of various nationalities
function in such cases. This article are still being detained, by mid 2008, at
examines the military rationale of the United States Army’s Guantanamo
the international law of war and
the challenges to it by human rights Bay detention center, located in Cuba.
organizations and the U.S. justice The legal basis for these people’s deten-
system. tion, which for some has lasted over six
Should suspected terrorists be
treated as POWs or international years, is their classification as “unlawful
war criminals? Granting prisoner enemy combatants.” Who are these
of war privileges to suspected “combatants”? Most have been brought
belligerents in detention has been
to Guantanamo after having been
resisted, particularly for its lack of
reciprocity. Current developments picked up by United States and other
in international law have failed to officials in diverse countries throughout
vigorously address this situation. the world, rather than on the battle
fields of Afghanistan and Iraq.
INTERNATIONAL JOURNAL ON WORLD PEACE

VOL. XXV NO. 3 SEPTEMBER 2008 85
the international law of war and America’s war on terrorism
In the law of war, subsequently renamed the “Law of Armed Conflict”

and more recently emerging as the “International Humanitarian Law,”
“distinction” is a cardinal principle. Alluded to in early customary law,
confirmed by the United States in the Civil War’s Lieber Code (1863)1 and
acknowledged by the international Declaration of St. Petersburg (1868),2
“distinction” serves to draw a firm dividing line between military person-
nel, which consist of combatants or belligerents who are subjected to the
harms of warfare, and the non-warring civilian populations, which is to be
protected from the ill effects of armed conflicts.
Whether derived from the chivalrous practices of medieval warfare, or
deliberately adopted later to serve growing reciprocal humanitarian objec-
tives, the prevailing international customs
and laws of war guarantee captured and
The prevailing
confined combatants—who had taken
international customs
part in international armed conflicts—
and laws of war
lenient, secure and respectful treatment.
guarantee captured and This humane policy was codified by the
confined combatants— Hague Convention in the late nineteenth
who had taken part in century and by the four Geneva Conven-
international armed tions of 1949.3
conflicts—lenient, secure Customary international humanitarian
and respectful treatment. law grants several important privileges to
surrendered and captured, as well as to
sick and disabled combatants (as distinguished from non-combatants),
whether located on the battle field or in captivity. These privileges typically
include: (1) international immunity from punishment for legally sanctioned
wartime acts of violence and destruction (but not “war crimes”); (2) pris-
oner of war status, with its accompanying benefits, while in captivity; and
(3) a post-conflict right to repatriation.
The Inter-American Commission on Human Rights had poignantly
pointed out that in the conduct of hostilities, “the combatant’s privilege…
is in essence a license to kill or wound enemy combatants and destroy…
enemy military [installations].”4 Disabled, surrendering or captured com-
batants may therefore not be refused quarter, nor be killed, wounded5
or prosecuted for their wartime hostilities, even if such conduct would
have constituted serious crimes if carried out by non-combatants, or was

86 VOL. XXV NO. 3 SEPTEMBER 2008
undertaken by combatants in time of peace. This immunity from prosecu-

tion has been derived from the doctrine of Jean Jacques Rousseau who
perceived war as a conflict between “public entities, not between individu-
als,”6 thus placing the responsibility for all wars on the state rather than on
the individual combatants.
Combatants therefore remain immune from punishment for their very
participation in hostilities, whether or not theirs is a “just” or an “unjust”
and “aggressive” war in violation of the principle of jus ad bellum. They
must, however, in their wartime activities comply with the rules pertaining
to the conduct of war, the jus in bello.
The 1907 Hague Convention on Land Warfare specified the qualifica-
tions of privileged combatants (referred to in the 1907 document as bel-
ligerents).7 To come within this category one need be a member of either a
recognized country’s armed forces or affiliated militia (as long as the latter
is under responsible command and its members are identified by distinctive
insignias, carry their arms openly and comply with the laws and customs of
war). Citizens spontaneously rising against an invading army (the so-called
levee en masse) also qualify as lawful combatants as long as they carry their
arms openly and comply with the laws and customs of war.
The Geneva Prisoner of War Convention,8 the third of the four new
humanitarian conventions adopted in 1949, similarly specified in Article
4 (A) comparable requirements for entitlement to the prisoner of war sta-
tus. To qualify as a Prisoner of War (POW) one must have served in the
armed forces of a party to a military conflict, or in a militia or volunteer
corp under responsible command, wearing distinctive insignias, carrying
arms openly and conducting their operations in accordance with the laws
and customs of war.
With an ever increasing number of post-World War II armed conflicts
consisting not of international wars but of internecine or intra-national
hostilities, between sub-national political, ethnic and religious groups, or
between them and the national governments, a new concern for the humane
treatment and humanitarian law rights of the greatly enlarged body of non-
state belligerents had been manifested. How is international humanitarian
law to respond to demands for combatancy status and prisoner-of-war
privileges by domestic dissidents and human rights advocates, on the one
hand, and by religious extremists and ethnic fanatics and terrorists, on the

other? What should be the law’s response to possible claims for privileged
combatancy, for POW status and for repatriation by members of the Irish
Republican Army, by Afghanistan’s Taliban and Bin Laden’s al-Qaeda loyal-
ists, by Lebanon’s Hezbollah militia-men and by Palestinian Hamas suicide
bombers—or by other belligerents who altogether reject the customary
and international laws of warfare?
Should these latter groups of non-state actors engaged in anti-state
warfare and criminality, who usually defy all rules of international law of
war, be considered combatants or international offenders? And if prosecuted
should they be proceeded against exclusively under domestic criminal law
rather than international humanitarian law? Moreover, could some of the
abbreviated detention and trial institutions and procedures developed for
the military forces, in conjunction with
the law of war, be utilized to by-pass the
Should groups of non- cumbersome individual rights safeguards
state actors engaged mandatory under traditional domestic or
in anti-state warfare international criminal law? The United
and criminality, who States retort to the Twin Towers bombing
usually defy all rules through a declaration of “war” on terror-
of international law ism was undoubtedly due, at least in part,
of war, be considered to the administration’s quest for the least
combatants or cumbersome procedures permitting the
international offenders? detention, confinement and interrogation
of individuals on the mere suspicion of
terrorist connections.
should suspected terrorists be treated as pows

or as war criminals?
Despite repeated references by American government officials, military
personnel, courts, legislators and the mass media to “unlawful combatants”
and their detention, trial and punishment, the term “unlawful” combat-
ant does not appear in the treaties and conventions that codify or modify
the international law of war. Neither does the proposed alternative term
“unprivileged combatants,” preferred by the International Committee of
the Red Cross (ICRC) and by counsel to the detainees, surface anywhere

in the official terminology of international humanitarian law. Under the

first and “unlawful” nomenclature, non-conforming combatants are per-
ceived as virtual war criminals and are subject to military or martial law.
Under the second and “unprivileged” nomenclature, members of this class
may be entitled to some, if not all, of the prisoner of war and combatancy
privileges or similar humanitarian safeguards. The unresolved controversy
regarding the meaning, the legal requisites for, and the specific privileges or
disabilities associated with either one of the two combatancy designations
(“unlawful” versus “unprivileged”) is clearly motivated by ideological as
well as by practical considerations. But the disagreement may be attributed
also, in great part, to the law of war’s definitional imprecisions regarding
both the combatancy and “prisoner of
war” status. It had long been
It is with regard to these unlawful or assumed that
unprivileged combatants—members of a belligerents in armed
category nowhere expressly mentioned conflicts who were not
or defined in the laws of war—that a legal acting on behalf of a
and policy contest, commenced over 50 proper sovereign, who
years ago, has been reignited after New
failed to be properly
York City’s traumatic events of September
identified, or who
11, 2001.
violated the international
It had long and generally been assumed
in United States Military justice circles laws of war, had
that belligerents in armed conflicts who forfeited their claim to
were not acting on behalf or under the combatancy status.
authority of a proper national sovereign,
who otherwise failed to be properly identified by uniforms, insignias and
weapons, or who violated the international laws of war, had forfeited their
claim to combatancy status. It was likewise deemed reasonable that when
belligerents surreptitiously carried out acts of espionage or sabotage, or
engaged in perfidious practices, they also relinquished their claims to pris-
oner of war status and the derivative immunity from prosecution. By failing
to comply with the requisite standards of combatancy the non-conforming
belligerents were deemed unlawful combatants. Such status of unlawful
combatancy had been considered, under prevailing United States legal
doctrine, sufficient not only to deprive a combatant of a prisoner of war

status and its derivative privileges but also to constitute him an offender
against the law of war.
The United States Supreme Court, in the Ex Parte Quirin (1942)9
and Johnson v. Eisentragen (1950)10 decisions, adhered to that point of
view. Ex parte Quirin’s six armed German-born individuals landed during
World War II from German submarines at various United States Eastern
seaboard locations. After discarding their German military uniforms the
newly arrived proceeded in civilian dress to carry out multiple sabotage
assignments. Captured, charged and tried before a military commission for
(1) “being enemies… [they] secretly and covertly passed, in civilian dress,
contrary to the law of war, through the military defenses of the United States
for committing hostile acts”;11 (2) violating Article 81 (giving intelligence
to the enemy) and Article 82 (spying) of the United States Articles of War
(emphasis supplied); and, (3) conspiring to commit these acts.12 All of the
accused were found guilty and sentenced to death.
In reviewing their appeals, the United States Supreme Court noted
that “from the beginning of its history this court has recognized and
applied the law of war as including that part of the law of nations which
prescribes, for the conduct of war, the status, rights and duties of enemy
nations as well as enemy individuals.”13 Addressing the conduct of enemy
individuals during armed conflicts, the Supreme Court noted that the
international law of war draws a sharp distinction between the armed
forces of belligerent nations (members of which the court, alternatively
and without differentiation, referred to as “combatants” or “belliger-
ents”) and their peaceful populations, or civilians. Distinguishing unlaw-
ful combatants from the lawful, and emphasizing that the latter were
subject to detention as prisoners of war upon capture, the Court pointed
out that unlawful combatants were to be tried and punished by military
tribunals for acts which rendered their belligerency unlawful. Accord-
ing to the Court, “familiar examples of belligerents who are generally
deemed…to be offenders against the law of war [and] subject to trial
and punishment by military tribunals”14 included the spy without uni-
form who penetrates military lines in war time, or an enemy combatant
who secretly and without uniform comes through the lines in order to
destroy life or property. The Supreme Court enumerated other categories
of unlawful belligerents listed in the War Department’s 1914 Rules of

Land Warfare: armed prowlers, saboteurs, destroyers of bridges, roads

or canals, robbers of the mail and cutters of telegraph wires.15 The War
Rules specified more generally, in paragraphs 348 and 351, that “men...
who, without being lawful belligerents” commit hostile acts of any kind
are not entitled to prisoner of war privileges and are to be punished as
war criminals.
unprivileged contrasted with unlawful

combatants
The frequently referred to Ex Parte Quirin opinion, which has come to
be known as the controlling United States doctrine, had been challenged
by several scholarly writers and international humanitarian law experts for
over half a century. Many of the critics have favored a significantly different
outcome. In an oft-quoted 1951 article on “So-called ‘Unprivileged Bellig-
erency’: Spies Guerrillas, and Saboteurs,”16 Richard Baxter, a noted academic
and international judge, argued vigorously that the so-called “unlawful
combatants” (being those who do not qualify as lawful combatants under
humanitarian law) should more accurately be labeled “unprivileged combat-
ants.” Unprivileged belligerency, Baxter urged, did not constitute an inter-
national crime and was not punishable by international law. Only domestic
laws and tribunals, he asserted, had the authority to proscribe and punish
as domestic crimes such instances of unprivileged belligerency.
In essence, Baxter distinguished between violations of the customary and
convention derived rules that define lawful combatancy, which are punishable
only in domestic law, and the commission of grave offenses against the laws
of war (such as willful killing, or the destruction of the environment) which
constitute internationally proscribed war crimes. Only for grave violations of
the laws of war, according to him, may unlawful as well as lawful combatants
be subjected to international prosecution as war criminals.
Both former United States Ambassador George H. Aldrich, in a 2002
article,17 and a 2002 American Society of International Law Task Force
report, by Robert Goldman and Brian Tittemore,18 had taken strong
exceptions to the United States Supreme Court’s historical position in Ex
parte Quirin. In their disagreement with the Ex Parte Quirin decision, the
ASIL Task Force members reiterated that “unlawful” combatancy denoted

only the accused lack the lawful combatant’s privilege to take part in the
hostilities. But “[m]ere combatancy by such persons is not tantamount to
a violation of the [international] laws of armed conflict, although specific
hostile acts may qualify as such.”19 For their conclusions the ASIL reporters
relied heavily on Article 44 (2) of the 1977 Protocol 1, hitherto unratified
by the United States, which reiterates that “the sanction for a combatant,
who fails to distinguish himself when so required, is trial and punishment
for a breach of the laws of war, but not loss of combatant and prisoner of
war status.”20
The United States post-September 11 debate regarding the legal status
of detainees was further complicated by the challenge to the very applicabil-
ity of the international law of war to individuals suspected of connections
with terrorist organizations. The United
States administration, although conceding
Al Qaeda possessed that the proclamation of a “war on ter-
neither the necessary ror” was without legal significance, had
international legal continued to claim that the United States
personality nor the legal was engaged in an armed conflict with Al
capacity to ratify and Qaeda.21 At the same time a majority of
become a party to the military and political commentators have
Geneva humanitarian posited that the United States could not
law conventions. be engaged in an armed conflict, in the
technical sense of that word, with Al
Qaeda. Being an international organiza-
tion engaged in hostilities against the United States, and constituting a
“quintessential non-state actor,” Al Qaeda possessed neither the necessary
international legal personality nor the legal capacity to ratify and become
a party to the Geneva humanitarian law conventions.
What indeed have been the practical implications of the controversy
regarding the status of these unlawful/unprivileged combatants? What
different outcome is to be derived from labeling such combatants as
“unprivileged” rather than “unlawful”? Under Ex parte Quirin only lawful
or privileged belligerents qualify for prisoner of war status, while unlaw-
ful ones are not entitled to that designation. Protocol I of 1977, on the
other hand, does not draw such drastic distinction between the lawful and
the unprivileged combatants regarding the prisoner of war entitlement.
Protocol I specifically provides that any person “who takes part in hostili-

ties” and is captured “shall be presumed to be a prisoner of war” and no

such prisoner of war status is to be terminated until such time “as his status
has been determined by a competent tribunal.”22
What is so significant about the combatancy and the POW status to
account for the deep and continuing breach between Ex Parte Quirin and
its opponents? The combatancy designation and the POW status clearly
afford their beneficiaries significant privileges and safeguards against abuse.
Furthermore, the interrogation of POWs is proscribed by implication by
Article 9 of the 1907 Hague Convention.23 The detaining powers are
obliged, moreover, to accord prisoners of war in their captivity “conditions
as favourable as those for [their own]...
forces...” and to provide them with daily The combatancy
food rations sufficient to keep them in designation and the
good health. 24 Similar guarantees are POW status clearly
provided regarding prisoners clothing, afford their beneficiaries
hygiene, medical attention, religious and significant privileges
physical activities.25 Prisoners of war are and safeguards against
also entitled to special assistance from the abuse. The detaining
International Committee of the Red Cross powers are obliged
and from other relief societies.
to accord prisoners of
It is no surprise, therefore, that broad-
war in their captivity
ening the category of humanitarian law’s
beneficiaries is favored by human rights
“conditions as favourable
advocates. The ICRC undoubtedly also as those for [their own]...
sees its specially recognized accessibility to forces...”
disabled and surrendered combatants and
POWs not only as an effective safeguard against the abuse of these captives
but also as a unique recognition of its global moral authority.
the end of reciprocity: privileges without

responsibilities?
The quest for granting prisoner of war privileges to suspected belligerents
in detention, whether or not they had complied with all the Hague and
Geneva requisites for combatancy (which includes an undertaking of com-
pliance with the laws and customs of war), has been vigorously resisted
on several grounds, particularly for its lack of reciprocity. Insistence on

reciprocity, meaning mutuality of duties as well as of privileges by all parties

to international agreements, has long been considered an indispensible
requirement of treaty law. The waiver of such reciprocity in the interest of
securing a higher degree of humaneness for non-conforming belligerents,
regardless of their own non-compliance, remains a highly contested objec-
tive. Especially in the face of adversaries who proclaim their disdain for all
standards of international humanitarian law, such concession is likely to
advance neither the credibility nor the universality of humanitarian law.
Expanding the prisoner of war ranks by according privileges to participants
in domestic armed conflicts will not only reward with impunity violators of
humanitarian law but is also likely to contribute to an increase and inten-
sification of violent domestic struggles against established regimes. Such
self-defeating generosity cannot be expected from most governments in
power.
The resolution of the “unlawful”/“unprivileged” combatant’s status
may not occur soon. But, especially in an age in which unorthodox and
unrestrained combatancy of all types—including genocide and terrorism—
has broken all bounds, where innocence is denied and indiscriminate vio-
lence is the order of the day, any relaxation of the laws of war which will
lessen the duties and liabilities of the warrior community—particularly that
made up of “unprivileged/unlawful” combatants—is likely to and indeed
will send the wrong message.
reaching beyond criminal law and

belligerency: the specter of preventive
detention
A recent and most pressing opportunity for reassessing the standing, in
international and domestic law, of organizations, collectives and individu-
als (so called “non-state actors”) suspected of waging war against member
nations of the international community came up in the aftermath of Sep-
tember 11, 2001. Taking notice of the United States non-official declara-
tion of “war” against the Al Qaeda organization, a self-admitted culprit,
America’s Department of Justice, as well as the Department of Defense,
were confronted with the difficult dilemma of what system of law should
be applied against individuals and organizations suspected of this or other

terrorist activities, memberships or sympathies. Was United States domes-

tic and peacetime criminal law to be the legal instrument of choice? Or
would a resort to the law of war (as codified by The Hague, Geneva and
other conventions) provide a more appropriate and effective system for
the detention, investigation, trial and punishment of terrorist culprits? By
resorting to the “enemy combatants” label, the Bush Administration boldly
and possibly hastily decided to proceed under the law of war.
The “enemy combatants” designation has ever since dominated the
debate over how America’s legal system is to best deal with terrorism sus-
pects. The United States Administration’s policy, based on the law of war’s
military modality, had appeared to offer
the nation’s security agencies comfortable The Administration’s
and defensible opportunities for long-term policy, based on the
detentions and interrogations of suspect law of war’s military
“enemy combatants.” In great part the modality, had appeared
government’s decision was in response to a to offer the nation’s
desire for wider presidential discretion and security agencies
greater executive powers in the war against comfortable and
terrorism. The “war” was, alternatively, to defensible opportunities
be conducted in accordance with the crimi-
for long-term detentions
nal law modality, the various constitutional
and interrogations
requirements under the 4th, 5th and 6th
Amendments would have been invoked
of suspect “enemy
to block governmental power. In that case combatants.”
the detention of criminal suspects would
have been limited by the requirement of magistrate-issued warrants. Arrest
and search warrants would have needed a showing of “probable cause,” and
warrantless “searches and seizures” could not have been carried out unless
in compliance with the limits of “reasonableness.”
Furthermore, those in confinement would have been protected from
interrogation without the presence of counsel, unless counsel was volun-
tarily and knowingly waived. Early preliminary hearings would have been
required for those detained, including the opportunity to be released on bail.
But these and other traditional constitutional safeguards were considered,
at the time, as unreasonable barriers to the operations of national security
by many law enforcements agencies. To effectively prevent terrorism’s

contemplated and future acts of violence (as contrasted with the criminal
law’s mission of punishing offenders for crimes already committed) it was
considered imperative to follow up and investigate all national security leads
and suspicions—whether probable and reasonable or not—as well as to
confine and interrogate all suspects until their danger to national security
had been disproven.
The “enemy combatancy” approach was clearly a deliberate departure
from the criminal justice modality, relying instead on a modified law of war
framework, which arguably fell under the Commander-in-Chief powers.
The resulting procedures, with few if any safeguards against abuse, offered
great temptations of power to those vested
with responsibilities for national security
The resulting
and defense. It appeared that only under
procedures, with few if the law of war could alleged combatants be
any safeguards against subjected to speedy capture and long term
abuse, offered great confinement. Only military procedure
temptations of power would allow the detention and interroga-
to those vested with tion of persons without establishing proba-
responsibilities for ble cause or reasonableness, without being
national security and blocked by recurring judicial reviews.
defense. The deliberate choice of military jus-
tice after the tragedy of September 11,
2001 was substantially legitimated by
Congress through the passage of the Military Commission Act (MCA)
in 2006. The MCA identified “unlawful enemy combatants” (to include
persons associated with the Taliban, Al Qaeda and specified terrorist orga-
nizations) and thereby denied their entitlement to the internationally rec-
ognized privileges of combatancy, such as immunity from prosecution for
war-connected violence, and protection against extensive interrogation.
Terrorists, who operate secretly, who do not carry their weapons
openly, who fail to identify themselves by insignias or uniforms, and who
otherwise do not seek to comply with other internationally mandated
criteria required for privileged combatancy status, have been designated
by both the United States executive and legislative branches as unlawful
enemy combatants, rather than criminal offenders against United States
criminal law. As “unlawful enemy combatants,” they were to be entitled

to few of the privileges of lawful combatants and were to be burdened

with tremendous liabilities; they could be seized without compliance with
constitutional safeguards. They could be interrogated, held without trial
until the government chose to release them, and were to be denied access
to judicial review and counsel.
The law of war route appeared highly desirable and reasonable to the
legal architects of America’s war on terrorism. Not only did the approach
seem proper under domestic law, but it also gave the appearance of comply-
ing with the law of war as pronounced during World War II by the United
States Supreme Court in Ex parte Quirin (1942).
What the architects of the “enemy
combatant” approach failed to appreci-
What the architects
ate was the complexity of international
humanitarian law, the strength of the of the “enemy
opposition, and the unending energy and combatant” approach
litigiousness of their colleagues in the failed to appreciate
international humanitarian and human was the complexity
rights bars. There have been a series of of international
cases questioning the Administration’s humanitarian law, and
application of a modified law of war or the strength of the
military framework for the purpose of opposition.
detaining terrorist suspects. Among the
most noted has been the case of Jose
Padilla, a United States convert to Islam who was arrested at Chicago’s
O’Hara airport on May 8, 2002, upon his return from a trip that started
in Pakistan. Padilla was suspected of involvement in a “dirty bomb” plot
and of returning to America for the purpose of locating radioactive mate-
rial that could be dispersed with conventional explosives. First detained on
a non-criminal material witness warrant, Jose Padilla was transferred to a
military brig in South Carolina. Insisting on his right to have his confine-
ment reviewed through a habeas petition, his claim was finally upheld by the
United States Supreme Court. Padilla was then returned from his military
custody for trial in the civilian criminal justice system. After his five-year
odyssey, Padilla was eventually tried and convicted, on August 15, 2007,
in Federal District Court and was found guilty of conspiracy to commit
violence and providing material assistance to terrorist organizations.

Responding to Padilla’s conviction, retired Judge Michael B. Mukasey,

who had originally ordered Padilla’s 2002 arrest on the material witness
warrant, wrote that “[t]error trials hurt the nation.”26 Mukasey, who subse-
quently became the United States Attorney General, recited the history of
the Padilla litigation and found that “Padilla’s case helps illustrate in minia-
ture the inadequacy of the current approach to terrorism prosecutions.”
This inadequacy was in part due to the difficulty of the Administration’s
legal architects in finding the appropriate legal arena as well as the process
through which to combat terrorism. The difficulty was in choosing wisely
between the traditional criminal process and an expedited law of war. This
difficulty was well-demonstrated, as Judge Mukasey noted, by the proceed-
ings in the Padilla case. The charges against Padilla originated in New York
federal court; Padilla was then transferred to military custody in South
Carolina where without benefit of legal counsel he allegedly confessed to the
dirty bomb plot. From there he was transferred back to the criminal justice
system to be tried, and ultimately convicted, in a Florida federal court, on
different charges than those set forth in the initial New York criminal matter.
Frustrated by this chain of events, Judge Mukasey saw the future thusly:
“[Padilla] will appeal. By the time his appeals run out he will have engaged
the attention of three federal district courts, three courts of appeal and on
at least one occasion the Supreme Court of the United States.”27
A still more direct challenge to the Administration’s decision to rely
on the law of war and the “unlawful” combatancy model came, in the case
of Ali saleh Kahlah Al-Marri, from the United States Court of Appeals for
the 4th Circuit. A citizen of Qatar and a legal resident of the United States,
Al-Marri had been detained in military custody as an enemy combatant.
Al-Marri’s challenge of his detention, through a habeas corpus petition,
was denied by the federal district court on the ground that the Military
Commissions Act expressly disallowed judicial review of habeas corpus
petitions by alien detainees held as enemy combatants. But the 4th Circuit
Court decision, through Judge Motz, concluded that since Al-Marri could
not correctly qualify as combatant under the law of war, he could not be
properly deprived of his habeas corpus rights by the Military Commission
Act which was specifically tailored to apply to enemy combatants.28
Relying on a previous United States Supreme Court decision in Ham-
den (2006),29 where the court found that the conflict between the United

States and Al Qaeda in Afghanistan was not of an international character

because it was not between two nations, Judge Motz found that conflicts
not of an international character are governed by common Article 3 of the
Geneva Conventions which nowhere mentions, recognizes, or authorizes a
category to be known as “combatants.” In the absence of a “combatant”
category in conflicts not of an international character, the court concluded,
Al-Marri could not be designated and detained as an “enemy combatant.”
By denying altogether the category of “combatants” (and as a consequence
the designation of “enemy combatants”) in non-international war, the Al-
Marri decision has challenged the very foundation on which the United
States relied in making the law of war a key instrument in the legal campaign
against terrorism.
Further undercutting the Administration’s detention powers under
the law of war modality, the 4th Circuit reiterated: “Of course, a person
who commits a crime should be punished, but when a civilian protected by
the Due Process Clause commits a crime he is subject to charge, trial and
punishment in a civilian court, not to seizure and confinement by military
authorities.”30
It is no wonder then that those who had sought to rely on the prin-
ciples and practices of the law of war to authorize the seizure and deten-
tion of suspected terrorists and their supporters received the 4th Circuit
decision with great alarm. Describing the decision as granting “Impunity
for Al-Qaeda,” two Washington writers, David B. Rivkin Jr. and Lee A.
Casey, the first having served in the United States Justice Department
during the Ronald Reagan and the second during the George H.W. Bush
administration, claimed that “the Al-Marri case was deeply flawed, and if
widely adopted it would undermine a fundamental purpose of the laws of
war: avoiding impunity for war crimes. …Only if the laws of war apply can
the United States lawfully take the offensive against Al-Qaeda, seeking
out and attacking with deadly force its operatives in Afghanistan, Iraq and
elsewhere.”31
Yet while the contest between the traditional post-hoc criminal justice
law enforcement modality (ridden with many constitutional safeguards) and
the exigency-driven and prevention-oriented law of war approach (suppos-
edly burdened with less constitutional protections) is still going on, other,
more experienced and what appear on first glance to be more moderate

voices have entered the debate. One of the most prominent of these voices
belongs to Judge Mukasey, speaking before his appointment as United
States Attorney General, to the effect that the prosecution record against
Al Qaeda and its affiliates since the first World Trade Center bombing in
1991 had been unsatisfactory.
The Attorney General puts forth three arguments for a new approach.
First, “[C]riminal prosecutions have yielded about three dozen convictions,
and even these have strained the financial and security resources of the fed-
eral courts near to the limits.”32 Second, traditional criminal prosecution,
the process of which is open to the press and public, “risk disclosure to our
enemies of [our] methods and sources of intelligence33… [and] also discour-
ages allies abroad from sharing information with us lest it wind up in hostile
hands.” Thirdly, Judge Mukasey asked his readers to “consider the distor-
tions that arise from applying to national security cases generally the rules
that apply to ordinary criminal cases.”34 These distortions were nowhere
specified by Judge Mukasey and are therefore left to speculation.
Judge Mukasey has been evidently dissatisfied with the use of the ordi-
nary criminal law process for the legal pursuit of terrorists. He was keenly
aware, likewise, of the previous roadblocks—evidenced by the avalanche
of opposing lawyers, cases and legal decisions—in response to continuing
efforts to deal with security suspects through resort to the military process
and the combatancy model. He also took further notice of the United States
Supreme Court’s growing interventions in this arena which “may end up
making [military] commissions…no longer possible.”35
In conclusion Judge Mukasey asked: “What is to be done?” Answering
his own inquiry he referred to several proposals “for a new adjudicatory
framework.”36 One such proposal was for the creation of a new and separate
national security court “to deal with the full gamut of national security
issues from intelligence gathering to prosecution.”37 Judge Mukasey men-
tioned next, “more limited proposals” which “address principally the need
to incapacitate dangerous people, by using legal standards akin to those
developed to handle civil commitment of the mentally ill.”38
But Judge Mukasey and the other authors of proposals referred to by
him have not been the lone proponents of a new system of justice specifi-
cally designed to deal with national security suspects and issues. Two highly
respected lawyers, Jack L. Goldsmith of Harvard Law School and Neal

Kaytal of Georgetown Law Center, the first a former official of the United
States Department of Justice in the George H.W. Bush administration and
the second a counsel for the Guantanamo detainees before the United States
Supreme Court, had floated in the press a similar plan for a “Terrorists’
Court” that would implement a national system of preventive detention for
suspected terrorists. After all, these later writers claimed, Congress and the
Supreme Court have “long approved preventive detention for people who
are dangerous to society—the insane, child molesters, people with infectious
diseases, and the like—but who have not committed crimes.”39
Judge Mukasey had not dismissed these proposals outright. Instead,
he appeared to speak favorably of Britain’s and France’s laws authorizing
the “investigative detentions” of terrorist suspects. Yet the recent proposals
which had cropped up in America had gone beyond the European “inves-
tigative detentions” to propose “preventive detentions.” These proposals
amounted to granting governments the authority to detain, interrogate and
hold for indeterminate lengths of time individuals for whom there was no
evidence “beyond a reasonable doubt” that they had actually committed
a terrorist crime, but where there was only an unspecified suspicion that
they might commit such a crime in the future.
America’s laws allow for such preventive detentions of the mentally ill
through the so-called involuntary “civil commitments” to mental institu-
tions. This model had been advocated and was experimented also with for
the “treatment” of drug addicts, alcoholics and “sexual deviants” in earlier
decades. It has also been upheld by the United States Supreme Court in
recent times through reliance, considered by some as highly questionable,
on the “civil” designations and the “treatment” assertions accompanying
these physical confinements to justify their departure from the traditional
safeguards of the 4th, 5th and 14th amendments to the United States
Constitution.
It was a similar claim of national exigency, and very similar jurispruden-
tial reasoning that led the United States Congress to pass the 1950 United
States Emergency Detention Act.40 More than half a century ago, in the
face of the growing threat of communism, Congress, after overriding a veto
by President Harry Truman, passed the McCarran Act. Long forgotten by
many contemporary lawmakers, that Act authorized the President, acting
through the Attorney General, to detain “each person as to whom there

is reasonable ground to believe that such person probably will engage in,
or probably will conspire with others to engage in, acts of espionage or
of sabotage.”41
Although repealed in 1971,42 the McCarran Emergency Detention
Act may not be totally dead. It may merely be waiting to be exhumed and
revived to serve new wars, including the war on terror. For the time being,
however, the law of war and the status of combatancy, whether privileged,
“unprivileged” or “unlawful,” continue to be highly contested topics call-
ing for domestic as well as international clarifications.
“Preventive detentions” however, are by no means a modern or
United States invention. The confinement at times of public exigency for
indeterminate periods, of persons deemed
to constitute a threat to the authority
Although repealed in
or security of government or its highest
1971, the McCarran officials, goes far back into history. Sub-
Emergency Detention sequently, detention had been utilized by
Act may not be totally the European colonial powers, domesti-
dead. It may merely be cally by autocratic and military regimes,
waiting to be exhumed and for the control of restive overseas
and revived to serve new populations considered as preventive
wars, including the war and social defense rather than punitive
on terror. measures. These allegedly “non-criminal”
practices had been immune to the tradi-
tional human rights safeguards attached
to the criminal process. With the contemporary growth of the incidence of
violence, terrorism, and belligerency worldwide not only newer, developing
and less stable governments but also long established, constitutionally firm
and developed nations have increasingly resorted to preventive detentions
for the maintenance of law, order and national security. Whether designated
as “preventive detentions” or “pre-trial detentions” all these measures are
substantially similar in that they are implemented without prior judicial
scrutiny, require a lesser evidentiary standard than the criminal law and are
supported not by evidence of past criminality but by concern and presump-
tions regarding future misconduct.
There has been recently growing questioning, grave concerns and
harsh criticisms of the expanding resort to preventive detentions, the

substantial extension of the reach of existing laws, the lengthening of

maximum detention periods,43 and the abuses permitted and promoted by
these developments, voiced by numerous international human rights and
allied advocacy groups. But current developments in international law have
failed to vigorously address these troublesome developments.44 While the
International Covenant on Civil and Political Rights (ICCPR),45 to which
the United States is a party, recognizes the right of people to protection
from “arbitrary arrest or detention” (Article 9), the rights specified by
that article are not included in the list of non-degradable rights detailed
in Article 4 of the ICCPR.46 This failure of inclusion appears to render
arbitrary arrest and detention acceptable provided that a state officially
declares an existence of a “time of public emergency which threatens the
life of the nation” [ICCPR, at Art. 4 (1)].
Also generally unavailable or unexplored, thus far, as restraints against
the procedural and substantive overreach of preventive detention, laws
and practices, have been the diverse provisions for the protection of liberty
contained in the United States Constitution. Insisting on a fundamental
distinction, a distinction which has been increasingly demonstrated to lack
substance, between the criminal process and civil commitments, United
States legislatures and courts have on several occasions been willing to
uphold preventive detentions as a non-criminal but civil process designed
not to punish but merely to assist in society rehabilitative and social defense
roles and therefore requiring less stringent constitution scrutiny. The invol-
untary commitments of the mentally disabled to institutions in an alleged
effort to prevent harm to themselves or others, of the chronic alcoholics
and drug addicts, under currently discredited treatment programs, and the
more recent detention programs for sexual offenders, who had served the
prison sentence imposed on them in the criminal process, have continuously
gained the approval of the highest courts in the land, including the United
States Supreme Court.47 It is therefore not too unlikely that a primary
weapon, forged over fifty years ago in the face of America’s war on com-
munism, might be resuscitated in order to try out a new, if questionable,
set of tools for pulling the contemporary and hitherto heavily burdened
and not too successful legal campaign against terrorism and fanatic Islam
out of the legal morass.

Notes
1. Art. 22.
2. Signed by 19 states on 11 December 1868, the Declaration included the follow-
ing language: That the only legitimate object which States should endeavor to accomplish
during war is to weaken the military forces of the enemy.”
3. Dietrich Schindler and Jiri Toman, The Laws of Armed Conflicts, p. xviii (Martinus
Nijhoff: Leiden, 2004). See also title of Protocol Additional to the Geneva Conventions
of 12 August 1949, and relating to the Protection of Victims of International Conflicts
(Protocol I), as well as the title of Protocol II.
4. Inter-American Commission on Human Rights and Human Rights, OEA/
Ser.L/V/II.116doc5,rev.1 corr. ¶68 (2002) quoted in Knut Dormann, The Legal Situa-
tion of “Unlawful/Unprivileged Combatants,” 85 IRRC 45 (2003), No. 849.
5. Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex:
Regulation Concerning the Laws and Customs of War on Land, 3 Maretens Noveau
Recueil (Ser. 3) 461, 187 Consol. T.S. 227, entered into force Jan. 26, 1910.
6. Nathaniel A. Berman, “Privileging Combat? Contemporary Conflict and the Legal
Construction of War,” 43 Columbia Journal of Transnational Law. 1, 9n.14 (2004) (quot-
ing Rousseau’s famous statement “War is not, therefore, a relation of man to man but a
relation of state to state….”).
7. Annex to the Convention, Sec. 1, Art. 1 (1907).
8. Convention III Relative to the Treatment of Prisoners of War, Part I, Art. 4
(1949).
9. Ex parte Quirin, 317 U.S. 1 (1942) at 27, 28.
10. 339 U.S. 763 (1950).
11. Ex parte Quirin, 317 U.S. 1 (1942) at 36.
12. Id. at 22.
13. Id. at 28.
14. Id. at 31.
15. Id. at 33-34.
16. Major Richard R. Baxter, “So Called ‘Unprivileged Belligerency’: Spys Gueril-
las and Saboteurs” 1951British Handbook of International Law. 323 (Oxford University
Press: London).
17. George H. Aldrich, “The Taliban, Al Qaeda, and the Determination of Illegal
Combatants,” 96 American Journal of International Law. 891 (2002).
18. Robert K. Goldman & Brian D. Tittemore, ASIL Task Force on Terrorism,
“Unprivileged Combatants and the Hostilities in Afghanistan” (December, 2002).
19. Id. at 5.
20. Id. at 20.
21. Executive Order No. 13440 (July 20, 2007).

22. Protocol I, at Art. 45 (1).

23. “Every prisoner of war is bound to give, if he is questioned on the subject, his
true name and rank, if he infringes this rule, he is liable to have the advantages given to
prisoners of his class curtailed.”
24. Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, art.
26, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Geneva Convention III].
25. Id. at Art. 27-38.
26. Michael B. Mukasey, “Joe Padilla Makes Bad Law,” Wall Street Journal, August
22, 2007, p. A 15.
27. Id.
28. Al-Marri v. Wright, 487 F 3d 160, 184-85 (4th Cir. 2007).
29. 548 U.S. 557 (2006).
30. Al-Marri, 487 F. 3d at 186.
31. David Rivkin, Jr. & Lee Casey, “Impunity for Al-Qaeda: The Implications of a
Bad Ruling on ‘Unlawful Combatants’,” Washington Post, July 2, 2007, p. A19.
32. Michael B. Mukasey, “Joe Padilla Makes Bad Law,” Wall Street Journal, August
22, 2007, p. A18.
33. Id.
34. Id.
35. Id.
36. Id.
37. Id.
38. Id.
39. Jack L. Goldsmith and Neal Kaytal, “The Terrorists’ Court,” New York Times,
July 11, 2007, p. A23.
40. 50 U.S.C. § 811-26.
41. 64 Stat. 987, Tit. II, § 103(a) (1950).
42. Pub. L. 92-128 § 2(a) (1971).
43. Currently pending before the United Kingdom’s House of Lords is a proposed
amendment to the country’s preventive detention laws, extending the period of pre-judi-
cial detention for terrorism suspects from 28 to 42 days.
44. Stanislaw Frankowski and Dinah Shelton, eds., Preventive Detention: A Compara-
tive and International Law Perspective (Dordrecht, The Nederlands: Kluwer Academic
Publishers, 1992).
45. International Covenant on Civil and Political Rights, http://www.unhchr.ch/
men3/b/a_ccpr.htm (April 28, 2008).
46 Helena Cook, “Prevention Detention—International Standards and the Protec-
tion of the Individual,” in Frankowski and Shelton, Eds., Preventive Detention, p.1.

47. Minnesota ex rel Pearson v. Probate Court, 309 U.S. 270 (140); Jacobson v. Massa-
chusetts, 197 U.S. 11 (1905); United States v. Ward, 448 U.S. 242 (1980); Allen v. Illinois,
478 U.S. 364, 368 91986); Foucha v. Louisiana, 504 U.S. 71 (1992); Heller v. Doe, 509
U.S. 312 (1993); Kansas v. Hendricks, 521 U.S. 346 (1997); United States v. Ursery, 518
U.S. 267 (1996); Kansas v. Crane, 534 U.S. 407 (2002).


The International Law of War and America'S War On Terrorism: Nicholas Kittrie

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The International Law of War and America'S War On Terrorism: Nicholas Kittrie

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the international law of

war and America’s war on

Nicholas Kittrie University Professor

Nicholas Kittrie, Distinguished University Professor at the American University School of

The events of 9/11 perpetrated by privileged and

INTERNATIONAL JOURNAL ON WORLD PEACE

In the law of war, subsequently renamed the “Law of Armed Conflict”

INTERNATIONAL JOURNAL ON WORLD PEACE

undertaken by combatants in time of peace. This immunity from prosecu-

INTERNATIONAL JOURNAL ON WORLD PEACE

should suspected terrorists be treated as pows

INTERNATIONAL JOURNAL ON WORLD PEACE

in the official terminology of international humanitarian law. Under the

INTERNATIONAL JOURNAL ON WORLD PEACE

INTERNATIONAL JOURNAL ON WORLD PEACE

Land Warfare: armed prowlers, saboteurs, destroyers of bridges, roads

unprivileged contrasted with unlawful

INTERNATIONAL JOURNAL ON WORLD PEACE

INTERNATIONAL JOURNAL ON WORLD PEACE

ties” and is captured “shall be presumed to be a prisoner of war” and no

the end of reciprocity: privileges without

INTERNATIONAL JOURNAL ON WORLD PEACE

reciprocity, meaning mutuality of duties as well as of privileges by all parties

reaching beyond criminal law and

INTERNATIONAL JOURNAL ON WORLD PEACE

terrorist activities, memberships or sympathies. Was United States domes-

INTERNATIONAL JOURNAL ON WORLD PEACE

INTERNATIONAL JOURNAL ON WORLD PEACE

to few of the privileges of lawful combatants and were to be burdened

INTERNATIONAL JOURNAL ON WORLD PEACE

Responding to Padilla’s conviction, retired Judge Michael B. Mukasey,

INTERNATIONAL JOURNAL ON WORLD PEACE

States and Al Qaeda in Afghanistan was not of an international character

INTERNATIONAL JOURNAL ON WORLD PEACE

INTERNATIONAL JOURNAL ON WORLD PEACE

INTERNATIONAL JOURNAL ON WORLD PEACE

INTERNATIONAL JOURNAL ON WORLD PEACE

substantial extension of the reach of existing laws, the lengthening of

INTERNATIONAL JOURNAL ON WORLD PEACE

INTERNATIONAL JOURNAL ON WORLD PEACE

22. Protocol I, at Art. 45 (1).

INTERNATIONAL JOURNAL ON WORLD PEACE

INTERNATIONAL JOURNAL ON WORLD PEACE

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