Does Being At War Make Them All Warriors?

Categorization of Persons Involved in an Armed Conflict and Whether a Different Categorization Would Yield a Different Result in the Conflicts in Iraq and Afghanistan Jan Fleckenstein* On Saturday, February 13, 2010, American, British and Afghan forces swept down on the town of Marjah, Helmand Province, Afghanistan, in an offensive designed to wrest the town from Taliban control.1 Unlike most previous offensives into Taliban-held territory in

Afghanistan, this military action was announced to the region’s inhabitants weeks in advance2 on the theory that the Taliban would abandon the town before the North Atlantic Treaty Organization (NATO)3 forces arrived and that local elders would convince young Afghans not to resist.4 The U.S. and Afghan governments also announced that once secured, the troops would not leave Marjah to be retaken by the Taliban; this time, Coalition forces were in Helmand for the long haul to support the Afghan government’s establishment of control over the province.5 But once on the ground in Marjah, NATO forces encountered stiff resistance in an initial battle

* Jan Fleckenstein, J.D., M.L.S., M.S./I.R.M, Syracuse University. Associate Director, H. Douglas Barclay Law Library, Syracuse University College of Law. A version of this paper was originally submitted in satisfaction of a requirement for Law 840, Laws of Armed Conflict, Professor David M. Crane, Syracuse University College of Law, April 2010.
1

Michael M. Phillips & Matthew Rosenberg, U.S. Starts Afghan Surge, Wall St. J., Feb. 13, 2010, http://online.wsj.com/article/SB10001424052748703382904575059921198076854.html (see also http://online.wsj.com/article/SB10001424052748703382904575059921198076854.ht ml#project%3DAFGHANISTAN-PAKISTAN-HOTSPOTS09%26articleTabs%3Dinteractive).
2 3

Id.

NATO joined the military action in Afghanistan that was initially named Operation Enduring Freedom, a U.S.-led defensive action under Article 51 of the United Nations Charter, later sanctioned by U.N. Security Council Resolutions 1379 and 1401. LESLIE C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT, 3RD ED. 19 (2008).
4 5

Phillips & Rosenberg, supra note 1. Id.

that lasted for fourteen days.6 In the weeks after the battle of Marjah, Afghans and U.S. forces alike complained that the Taliban were still present in the area, killing, beating and intimidating local residents, and even coming to collect compensation from the Marines for property damages in the February offensive. “You shake hands with them, but you don’t know they are Taliban,” Colonel Sakhi said. “They have the same clothes, and the same style. And they are using the money against the Marines. They are buying I.E.D.’s7 and buying ammunition, everything.” 8 The frustration of troops fighting in Afghanistan, who were driving Taliban fighters out of various regions of the country only to have them re-infiltrate villages and towns as soon as U.S., NATO and International Security Assistance Force (ISAF) forces moved on, was echoed by a segment of American public opinion9 and a broader swath of criticism from around the world as to how the U.S. was conducting “its” wars in Afghanistan and Iraq.10 Support for the 2010 surge of troops into Afghanistan was tempered by frustration that, after eight years, the Afghan government led by President Harmid Karzi controlled only 20% of the sovereign

6

Interactive Map: Regional Violence Follow Events in Afghanistan and Pakistan, Day by Day, WALL ST. J. ONLINE, Feb. 13, 2010, http://online.wsj.com/article/SB10001424052748703382904 575059921198076854.html#project%3DAFGHANISTAN-PAKISTAN-HOTSPOTS09%26 articleTabs%3Dinteractive.
7

Improvised Explosive Devices.

8

Richard A. Oppel , Jr., Violence Helps Taliban Undo Afghan Gains, N.Y. TIMES, Apr. 3, 2010, http://www.nytimes.com/2010/04/04/world/asia/04marja.html.
9

Jackie Northam, Afghan Deaths Threaten Support For U.S. Offensive, NATI’L PUB. RADIO, Apr. 23, 2010, http://www.npr.org/templates/story/story.php?storyId=126195738.
10

Jennifer Agiesta & Jon Cohen, Public Opinion in U.S. Turns Against Afghan War, WASH. POST, Aug. 20, 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/08/19/ AR2009081903066.html.

2

territory of Afghanistan.11 Meanwhile, Iraq continued to be plagued by sectarian violence and a growing insurgency, which threatened the scheduled removal of American fighting forces in 2010 and the withdrawal of all U.S. military forces by the end of 2011.12 CAUSES OF FRUSTRATION FOR TROOPS IN AFGHANISTAN AND IRAQ The inability of the U.S. and its allies to decisively defeat al Qaeda and the Taliban in Afghanistan, or to end the sectarian insurgency in Iraq, has raised questions about the sufficiency of international law to govern armed conflicts between a national military and extremist militants, and to control the conduct of militant forces with regard to civilian populations. While armed conflicts between national armies and rebel groups are not new, the laws of armed conflict grew out of the experience of the horrors of war between nations with regularlyconstituted national armies, not civil wars, insurgencies or terrorist plots.13 Additionally, the assertions of the U.S. government under President George W. Bush that the U.S. was engaged in a “global war on terror,” and that the Geneva Conventions did not apply to the conflicts in Iraq and Afghanistan, have raised questions about the role and sufficiency of the laws of war to control the actions of state parties when national armies are arrayed against terrorist groups or

11

Eight years after 9/11 Taliban now has a permanent presence in 80% of Afghanistan, ICOS, Sept. 10, 2009, http://www.icosgroup.net/modules/press_releases/eight_years_after_911 (According to the International Council on Security and Development, Taliban forces have moved back into regions once secured by the U.S.).
12

Iraq, N.Y. TIMES ONLINE, http://topics.nytimes.com/top/news/international/countriesand territories/iraq/index.html?scp=2&sq=american%20public%20opinion%20iraq&st=cse (last updated Feb. 24, 2012).
13

See generally Denise Plattner, Assistance to the Civilian Population: the Development and Present State of International Humanitarian Law, INT’L COMMITTEE RED CROSS, June 30, 1992, http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/57jmar?opendocument.

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rogue states.14 The wars in Afghanistan and Iraq have pitted the best military in the world against multiple groups of extremist militants, who make up for their lack of numbers and lack of technologically advanced weaponry with their ability to infiltrate civilian populations, their willingness to sacrifice civilian lives, and their use of terror tactics to force civilian cooperation. The presence and role of civilians is the most complicated aspect of the fighting in Iraq and Afghanistan because the insurgents blend with the civilian population: Civilians become unintentional casualties in attacks by U.S. forces, and a high number of civilian casualties are intentionally or collaterally inflicted by the insurgents. These casualties are often blamed on the U.S. and its allies simply due to the U.S. military presence in the country.15 The difficulty in accomplishing military and political goals in this “asymmetric”16 conflict caused political support for military operations in Iraq and Afghanistan to waver, increasing the likelihood that the U.S. would “declare victory and go home,” leaving the Iraqi and Afghan governments to contend with ongoing violence completely on their own.17 The Obama Administration reaffirmed the commitment of the U.S. to international law,

14 15 16

GREEN, supra note 3, at 53. See Northam, supra note 9.

Jakob Kellenberger, President of the ICRC, statement to the conference on the challenges for IHL posed by new threats, new actors and new means and methods of war (Nov. 9-10, 2009) (transcript available at http://www.icrc.org/eng/resources/documents/statement/genevaconvention-statement-091109.htm).
17

Mark Landler, NATO Backs Plan to Give Command to Afghans, N.Y. TIMES, Apr. 23, 2010, http://www.nytimes.com/2010/04/24/world/asia/24diplo.html?scp= 1&sq=NATO%20Backs%20Plan%20to%20Give%20Command%20to%20Afghans&st=cse.

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including international humanitarian law.18 The U.S. no longer claims that the armed conflicts in Iraq and Afghanistan are not subject to The Hague Regulations, the Geneva Conventions, and customary international law.19 Nonetheless, compliance with the tenets of international

humanitarian law has been a challenge for the Obama Administration. Distinguishing civilians from belligerents, disposition of detainees captured by the U.S. (including those turned over to the governments of Iraq and Afghanistan), and the use of advanced technology like unmanned drones to carry out attacks —in the hope of killing more belligerents and fewer civilians— raise issues of international humanitarian law that are just as important to understanding the Obama Administration’s challenges in Iraq and Afghanistan as the application of Common Article 3 to persons detained during the Bush Administration was to that administration. THE LEGAL BASIS FOR THE INVASIONS OF AFGHANISTAN AND IRAQ The U.S. launched an attack on the Taliban government that controlled Afghanistan in 2001 in pursuit of al Qaeda, an international terrorist network led by Osama bin Laden20 that hijacked four airplanes and crashed them into the World Trade Center, the Pentagon, and a field in rural Pennsylvania on September 11, 2001, after the Taliban refused to hand over Osama bin Laden,21 who was believed to be hiding out in an al Qaeda stronghold in the mountainous Tora

18

President Barak Obama, Remarks by the President at the Acceptance of the Nobel Peace Prize at Oslo, Norway (Dec. 10, 2009) available at http://www.whitehouse.gov/the-pressoffice/remarks-president-acceptance-nobel-peace-prize.
19 20

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

Jayshree Bajoria & Greg Bruno, al-Qaeda, COUNCIL FOREIGN REL., Aug. 29, 2011, http://www.cfr.org/publication/9126/.
21

See John F. Murphy, Afghanistan, Hard Choices and the Future of International Law, 85 INT’L L. STUD. 79, 84 (Michael N. Schmitt, ed., Naval War College 2009).

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Bora region of Afghanistan.22 The U.S. invaded Afghanistan pursuant to its right of self-defense under Article 51 of the U.N Charter23 and pursuant to a Congressional Joint Resolution.24 The U.S. did not operate under a U.N. Security Resolution authorizing the use of force, although the U.N. later sanctioned American military action (or at least the resulting regime change in Afghanistan) in Security Council Resolutions 1379 and 1401.25 The U.S. invaded Iraq in 2003. The U.S. sought, but did not get, U.N. support for military action against Iraq on the grounds that Saddam Hussein had the capability to manufacture weapons of mass destruction (WMDs) in violation of prior U.N. Security Council Resolutions and U.N. sanctions and that Saddam Hussein was harboring terrorists.26 U.S. troops invaded Iraq pursuant to a Joint Resolution of Congress27 and defeated the Iraqi Army. Despite the Bush Administration’s contention that, three weeks later, the Iraq war was a “mission accomplished,” the country soon sank into civil war and a recurrent insurgency marked by continued fighting and civilian casualties.28 The U.S. executed a Status of Forces Agreement

22

John Bowman, Tora Bora, CBC NEWS ONLINE, Dec. 2001, http://web.archive.org/web/20041010142231/http:// www.cbc.ca/news/indepth/targetterrorism/backgrounders/torabora.html
23 24 25 26

U.N. Charter art. 51, available at http://www.un.org/en/documents/charter/chapter7.shtml. S. J. Res. 23, 107th Cong. (2001). GREEN, supra note 3, at 19.

Colin Powell, Secretary of State, United States of America, Presentation to the U.N. Security Council on the U.S. case against Iraq (Feb. 6, 2003), available at http://www.cnn.com/2003/US/02/05/sprj.irq.powell.transcript/.
27 28

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

HANNAH FISCHER, CONG. RESEARCH SERV., RL 40824, IRAQ CASUALTIES: U.S. MILITARY FORCES AND IRAQI CIVILIANS, POLICE, AND SECURITY FORCES (2010) available at http://www.fas.org/sgp/crs/mideast/R40824.pdf.

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with Iraq in 2008 that called for all U.S. forces to withdraw no later than December 31, 2011.29 SOURCES AND SCOPE OF THE LAWS OF ARMED CONFLICT International humanitarian law is comprised of international human rights law, codified in the Universal Declaration of Human Rights30 and other human rights treaties, and the laws of armed conflict, also referred to as the laws of war. 31 The laws of armed conflict govern the conduct of hostilities between warring parties. It is codified in the Hague Conventions (1899 and 1907), the Geneva Conventions (1949), Additional Protocols I and II (1977), Additional Protocol III (2005) and other international treaties. For example, the Hague Conventions32 govern the methods and means of warfare and the protection of cultural property. Although limited on their face to the states that are parties to the treaty, the Hague Regulations (1907) have since been recognized, to the extent that they have not been superseded by later instruments, as customary international law that is therefore binding on all parties to an armed conflict.33 Customary law is

29

Agreement Between the United States of America and the Republic of Iraq On the Withdrawal of United States Forces from Iraq and the Organization of Their Activities during Their Temporary Presence in Iraq, Art. 24.1, Nov. 17, 2008, available at http://graphics8.nytimes.com/ packages/pdf/world/20081119_SOFA_FINAL_AGREED_TEXT.pdf.
30

Universal Declaration of Human Rights, G. A. Res. 217 (III) A, U.N. Doc A/RES/217(III) (Dec. 10, 1948), available at http://www.un.org/en/documents/udhr/.
31

For a list of international humanitarian law treaties and the countries that have ratified or signed them, see the Treaty Database maintained by the International Committee of the Red Cross, http://www.icrc.org/ihl.
32

See generally Hague Convention (IV): Regulations Respecting the Laws and Customs of War on Land, Oct. 18, 1907; Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954; Geneva Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects, Oct. 10, 1980.
33

Terry Gill & Elies van Sliedregt, Guantánamo Bay: A Reflection On The Legal Status And Rights Of ‘Unlawful Enemy Combatants’, 1 UTRECHT L. REV. 28, 34, note 25 (2005).

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the “common law” of war.

Customary law includes the rules of warfare that predate

international conventions or that have developed as international conventions are interpreted by State Parties (the countries that have ratified the conventions) and by international and domestic courts. Common Article 3 to the Geneva Conventions (1949) governs the treatment of all persons in time of international or non-international armed conflict.34 prohibits: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees, which are recognized as indispensable by civilized peoples.35 The laws of armed conflict govern only the conduct of military forces engaged in armed conflict. They do not address the circumstances that result in a declaration of war or whether the military action is justified. For example, the laws of armed conflict do not answer the question as to whether the U.S. was entitled under international law to invade Afghanistan when the Taliban government of Afghanistan refused to turn Osama bin Laden over to the U.S., or whether the U.S. was entitled to invade Iraq in order to overthrow Saddam Hussein’s THE GENEVA CONVENTIONS OF 12 AUGUST 1949 : COMMENTARY I (1952) at 38, also available at http://www.icrc.org/ihl.nsf/COM/365-570006?OpenDocument.
34

Common Article 3

35

Geneva Convention Relative to the Treatment of Prisoners of War, art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S 135 [hereinafter Geneva Convention III]. The four Geneva Conventions and Two Additional Protocols are available at http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/genevaconventions#a2.

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government. It does not answer the question of whether regime change (in either Afghanistan or Iraq) is a legal basis for military invasion. The laws of armed conflict set the rules for how an armed conflict is conducted by military forces once hostilities have commenced. It does not govern the actions of a country’s international intelligence agency or of a country’s international law enforcement agency, which are subject to the domestic law of the country and other international agreements that specifically address intelligence and law enforcement.36 APPLICATION OF THE LAWS OF ARMED CONFLICT TO AFGHANISTAN AND IRAQ The laws of armed conflict govern the conduct of warring parties in two kinds of armed conflicts: International armed conflict, defined as an armed conflict between two or more parties who are states, or who are states and rebel groups, and non-international armed conflict, defined as an armed conflict between either states and armed groups, or just armed groups.37 The U.S. and Afghanistan are both parties to the Geneva Conventions.38 The U.S. has

International humanitarian law and terrorism: questions and answers, INT’L COMM. OF THE RED CROSS: RES. CTR. (Jan. 1, 2011), http://www.icrc.org/eng/resources/documents/faq/ terrorism-faq-050504.html.
36

37 38

Id.

The U.S. ratified Hague Convention (IV) 1907 in 1909, and the Geneva Conventions in 1955. Hague Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, [hereinafter Hague Convention (1907)], State Parties, available at http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=195&ps=P. Geneva Convention, available at http://www.icrc.org/ihl.nsf/WebSign?ReadForm &id=375&ps=P. Afghanistan ratified the Geneva Conventions in 1956. Geneva Conventions, State Parties, available at http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=375&ps=P. Whether treaty obligations carry over from a de jure government to a de facto government such as the de facto Taliban government in Afghanistan is assumed for the purposes of this analysis. Since the ICRC lists parties to international conventions by country name, not by government, it must be that a national government in power, even if it overthrows a previous government by force, remains bound by the treaty obligations of its predecessor governments unless the successor government expressly repudiates the treaty, and even then the successor government would be bound by customary international law.

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not ratified Additional Protocols I, II, or III, but it complies with the provisions of those three protocols to the extent that they represent the codification of customary international law.39 Under the Third Geneva Convention, the military forces of a state party to the armed conflict are lawful combatants.40 A non-state party to an armed conflict may be recognized as a lawful combatant party to the armed conflict if it is a militia or other volunteer corps, including organized resistance movements, “belonging to a [state] party to the conflict” if they fulfill the conditions of being in a chain of military command, “having a fixed distinctive sign recognizable at distance,” “carrying arms openly,” and “conducting their operations in accordance with the laws and customs of war [emphasis added].”41 Additional Protocol I removes the requirement that a non-state party to an armed conflict have a fixed distinctive sign recognizable at a distance.42 The U.S. has not ratified Additional Protocol I, in part due to the belief that removal of the requirement for a fixed distinctive signal would include terrorist groups in the category of lawful combatants.43 Afghanistan did not become a signatory to Additional Protocol I until October 2009.44 At the time of the invasion of Afghanistan, the Taliban controlled the Afghan national
39

THE LAW OF LAND WARFARE vi (DEPT. OF THE ARMY FIELD MANUAL, 27th ed.) (July 1956), available at http://www.afsc.army.mil/gc/files/fm27-10.pdf.
40 41 42

Geneva Convention III, supra note 35, at art. 4(1). Id. at art. 4(2).

See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1125 U.N.T.S. 3, [hereinafter Additional Protocol I], available at http://www.icrc.org/ihl.nsf/FULL/470?OpenDocument.
43

THOMAS M. MCDONNELL, THE UNITED STATES, INTERNATIONAL LAW, AND THE STRUGGLE AGAINST TERRORISM 112 (2010).
44

Additional Protocol I, supra note 42.

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government. Although only a few countries recognized the Taliban as a legitimate (de jure) government, as a de facto government the Taliban was in control of the Afghan state.45 Therefore, U.S. forces fighting the Taliban were engaged in an international armed conflict because they were fighting the military forces of the existing government, a state party to the Conventions. 46 At the time of the Afghanistan invasion, al Qaeda was allied with the Taliban government of Afghanistan. Under additional Protocol I, members of al Qaeda would be lawful combatants and U.S. military action against al Qaeda would be an international armed conflict because of the militia or volunteer corps relationship between the Taliban and al Qaeda. However, the U.S. maintains that while the armed conflict against the Taliban government of Afghanistan was an international armed conflict, its fight against al Qaeda at that time constituted a separate armed conflict from that waged against the Taliban government.47 The U.S. Supreme Court did not reach the issue of whether the U.S. was involved in one or two armed conflicts (one international, one non-international), when it ruled in Hamdan v. Rumsfeld that Common Article 3 applied, “even if the relevant conflict is not one between signatories” to the Geneva Conventions.48 Nonetheless, the Court signaled it considered the conflict against al Qaeda, before the Taliban was driven from power, to be a non-international armed conflict. “Common
45 46

MCDONNELL, supra note 43, at 268.

Green points out that there was no recognition on the part of the Bush Administration that it was involved in an international armed conflict when it invaded Afghanistan in 2001; rather, the military action was premised on pursuit of the “war on terrorism.” GREEN, supra note 3, at 344. The U.S. acknowledged in 2002 that its war against the Taliban government of Afghanistan was an international armed conflict. Hamdan v. Rumsfeld, 548 U.S. 557, 629, n. 60 (2006).
47

Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005), rev’d on other grounds, Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
48

Hamdan, 548 U.S. at 629.

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Article 3 . . . provides that in a ‘conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply’ . . . certain provisions protecting ‘persons.’”49 When Harmid Karzai was selected as Chairman of the Transitional Administration50 of the government of Afghanistan, the status of U.S. military forces in Afghanistan changed from an invader to an armed force in Afghanistan at the invitation of the Afghan government. With the change in the government in Afghanistan, the status of the Taliban changed to that of a nonstate actor. Under the Third Geneva Convention, the Taliban became an “armed group” and the armed conflict in Afghanistan became solely a non-international armed conflict. The U.S. and Iraq are both state parties to the Geneva Conventions.51 Armed conflict between state parties to the Geneva Conventions are denoted international armed conflicts, which bind both warring parties to compliance with the terms of the Conventions.52 When Saddam Hussein’s army was defeated, the U.S. stayed on as an occupying force supporting a

49 50

Id.

Amy Waldman, A Nation Challenged: Interim Authority; A Government Meets With No Budget, and Very Little Else, N.Y. TIMES, Dec. 23, 2001, http://www.nytimes.com/2001/12/23/world/nation-challenged-interim-authority-governmentmeets-with-no-budget-very-little.html?scp=5&sq=Hamid+Karzai+Chairman+of+ the+Transitional+Administration&st=nyt.
51

Iraq was part of the Ottoman Empire until the end of World War I. It was under a British Mandate from 1918 until 1932. Iraq. ENCYCLOPÆDIA BRITANNICA ONLINE (2010), available at http://www.britannica.com/EBchecked/topic/293631/Iraq?cameFromBol=true. Iraq ratified the Geneva Conventions in 1956. Geneva Conventions, State Parties, available at http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=375&ps=P.
52

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

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Coalition Provisional Authority.53 The Third Geneva Convention still applies in cases of “partial or total occupation of the territory” of a state party.54 As in Afghanistan, after the establishment of a new Iraqi government, the fighting shifted to the combined U.S. military and Iraqi security forces against non-state actors, “armed groups,” and the conflict became a non-international armed conflict under the Third Geneva Convention. CATEGORIZATION OF PERSONS INVOLVED IN AN ARMED CONFLICT One of the challenges posed by the wars in Iraq and Afghanistan stemmed from the attempt by the Bush Administration to place the war against al Qaeda, the Taliban, and insurgents in Iraq outside the constraints of the Geneva Conventions and customary international humanitarian law. The Bush Administration’s claim that persons detained by the U.S. and its allies were not entitled to the protection of Common Article III formed the basis for its contention that the wars in Iraq and Afghanistan were not armed conflicts to which the Geneva Conventions applied.55 In effect, the U.S. claimed that the “global war on terror” was not a war that invoked the protections of international humanitarian law. However, in holding that a military commission convened to try Salim Ahmed Hamdan violated both the U.S. Uniform Code of Military Justice and the Geneva Conventions, the U.S. Supreme Court analyzed the conflict in Afghanistan as a non-international armed conflict,56 bringing U.S. law into line with the position of the International Committee of the Red Cross that the conflict in Afghanistan is Roger Cohen, The World: Traps Ahead; Iraq and Its Patron, Growing Apart, N.Y. TIMES, Dec. 21, 2003, at 4:1, http://www.nytimes.com/2003/12/21/weekinreview/the-world-traps-aheadiraq-and-its-patron-growing-apart.html?pagewanted=all&src=pm.
53

54 55 56

Geneva Convention III, supra note 35, at art. 2(2). GREEN, supra note 3, at 53. Hamdan v. Rumsfeld, 548 U.S. 557, 629 (2006).

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an armed conflict to which international humanitarian law applies.57 There are three categories of persons under the laws of armed conflict, and every person fits into one of the three categories: Lawful combatants, noncombatants, and unlawful combatants. Each of the three categories of persons has different legal rights.58 All categories of persons involved in an armed conflict have the right to humane treatment under Common Article 3.59 If a captured person’s status is undetermined, the person has a right to be treated as a prisoner of war until legal status can be determined.60 Combatants, or lawful combatants, are lawfully entitled to engage in hostilities.61 Lawful combatants must be in the military force of a national government, militia, or organized resistance movement.62 Lawful combatants must be under organized command, wear a

distinctive emblem, “carry arms openly, and conduct their operations in accordance with the laws and customs of war.”63 Lawful combatants cannot be prosecuted for lawful warlike acts

Afghanistan: ICRC calls on all parties to conflict to respect international humanitarian law, INT’L COMM. OF THE RED CROSS, NEWS RELEASE 01/47, Oct. 24, 2001, http://www.icrc.org/eng/resources/documents/misc/57jrdn.htm.
57

58 59

DIETER FLECK, THE HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS 65 (1995).

The Geneva Conventions of 1949 and Their Additional Protocols, INT’L COMM. OF THE RED CROSS, Oct. 29, 2010, http://www.icrc.org/eng/war-and-law/treaties-customary-law/genevaconventions/overview-geneva-conventions.htm.
60 61

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

Hague Convention (IV): Regulations Respecting the Laws and Customs of War on Land, art. 1, Oct. 18, 1907.
62 63

Id.

Id. Additional Protocol I (1977) to the Geneva Conventions drops the requirement that lawful combatants wear a distinctive emblem. The U.S., which has not ratified Additional Protocol I, has not acceded to this change, arguing that it is not in conformance with the customary laws of war.

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committed while engaged in hostilities (combat immunity).64 They can be prosecuted for grave breaches of the laws of armed conflict (war crimes) either by their own country or by any country or an international court.65 There is no statute of limitations on war crimes.66 Lawful combatants have a right to prisoner of war status when captured.67 Noncombatants are persons who do not take part in hostilities, i.e. civilians.68 Included in this category are medical personnel and chaplains accompanying the force, so long as they do not take up arms themselves, and persons who are hors de combat (out of the combat) because they have surrendered, are sick, or have been wounded, shipwrecked, or captured.69 Noncombatants have the right not to be the objects of direct attack.70 Noncombatants can lose their protected status as civilians under the Fourth Geneva Convention if they engage in hostilities.71 Unlawful combatants are persons who engage in hostilities without being legally

64 65

THE LAW OF LAND WARFARE, supra note 39, at cl. 3(a).

See How "Grave Breaches" are Defined in the Geneva Conventions and Additional Protocols, INT’L COMM. OF THE RED CROSS: RES. CTR. (June 4, 2004), http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/5zmgf9?opendocument (for the complete list of grave breaches). Grave breaches that are common to all four Geneva Conventions are: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health. See Id.
66 67 68 69 70 71

FRANҪOISE BOUCHET-SAULNIER, THE PRACTICAL GUIDE TO HUMANITARIAN LAW 285 (2007). Geneva Convention III, supra note 35, at art. 5. Id. at art. 3. Id. at art. 4. Id. Id.

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privileged to do so.72 Unlawful combatants are also referred to as unprivileged combatants or unprivileged belligerents.73 Unlawful combatants do not have combat immunity for acts they commit while engaged in hostilities and therefore are not entitled to prisoner of war status upon capture.74 They can be tried as criminals under the domestic law of the state that captures them for acts they commit that would be lawful if they were lawful combatants.75 “Terrorist” is not a category of person under international humanitarian law.76 “Terrorist” and “terrorism” have not been defined in ratified international humanitarian law treaties because it has proven difficult to craft definitions which are both sufficiently precise and sufficiently encompassing of the acts that are denoted as terrorist acts.77 However, measures or acts of terrorism that are perpetrated in the context of an armed conflict are prohibited under Art. 33 of the Fourth Geneva Convention.78 In the laws of armed conflict, “there is no legal significance…[to designating acts] as ‘terrorist’ because [those] acts… already constitute war

Knut Dörmann, The Legal Situation of “Unlawful/Unprivileged Combatants,” 85 INT’L REV. RED CROSS, 45 (2003).
72

73

The words “unlawful combatant” or “unlawful/unprivileged belligerent” do not actually appear in the Geneva Conventions. Id. at 46.
74

The Relevance of IHL in the Context of Terrorism, INT’L COMM. OF THE RED CROSS: RES. CTR., Jan. 1, 2011, http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/terrorism-ihl210705?opendocument.
75 76

Id.

Hans-Peter Gasser, Acts of Terror, “Terrorism” and International Humanitarian Law, 84 INT’L REV. RED CROSS 547, 552 (2002).
77 78

Id. at 552-554.

Geneva Convention Relative to the Protection of Civilian Persons in Time of War, art. 33, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, available at http://www.icrc.org/ihl.nsf/FULL/380?OpenDocument.

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crimes.”79 Terrorist acts are criminal under the domestic law under the country in which they take place.80 In 1987, the U.S. defined “terrorism” as “premeditated, politically motivated violence perpetrated against noncombatant targets by sub-national groups or clandestine agents,” and “terrorist group” as “any group practicing, or which has significant subgroups which practice, international terrorism.”81 “Enemy combatant” and “unlawful enemy combatant” are not categories of persons under international humanitarian law.82 The term “enemy combatant” in international

humanitarian law means lawful or unlawful combatants of one country, with who another country is at war.83 After 9/11, the Bush administration used the term “enemy combatant” to describe members of al Qaeda and the Taliban, as well as to detain persons without charge on the authority of the President’s powers as Commander in Chief.84 In 2006, Congress defined

79

International Humanitarian Law and Terrorism: Questions and Answers, INT’L COMM. OF THE RED CROSS: RES. CTR., Jan. 1, 2011, http://www.icrc.org/eng/resources/documents/faq/terrorism-faq-050504.htm.
80

International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, INT’L COMM. OF THE RED CROSS: REPORT 12, OCT. 2011, http://www.icrc.org/eng/resources/documents/report/31-international-conference-ihl-challengesreport-2011-10-31.htm.
81

22 U.S.C. § 2656 (f) (2006). Different Acts of Congress and different branches of the U.S. government use different definitions of terrorism. For links to statutory definitions in U.S. federal and state law, see U.S. ANTI-TERRORISM LAWS, http://jurist.law.pitt.edu/terrorism/terrorism3.htm.
82 83 84

THE LAW OF LAND WARFARE, supra note 39, at cl. 60. The Relevance of IHL in the Context of Terrorism, supra note 74.

Terry Frieden, U.S. Reverses Policy, Drops 'Enemy Combatant' Term, CNN, Mar. 13, 2009, http://articles.cnn.com/2009-03-13/politics/enemy.combatant_1_guantanamo-prisonersguantanamo-bay-al-qaeda-operatives?_s=PM:POLITICS.

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“unlawful enemy combatant” to mean: [A] person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces).85 The definition was made retroactive to include, “a person who, before, on, or after the date of the enactment of [the Act] has been determined to be an unlawful enemy combatant by a . . . tribunal established under the authority of the President.”86 This definition was repealed in the Military Commissions Act of 2009, which replaced the term “unlawful enemy combatant” with “unprivileged enemy belligerent,” and defined it as: [A]n individual (other than a privileged belligerent) who— (A) has engaged in hostilities against the United States or its coalition partners; (B) has purposefully and materially supported hostilities against the United States or its coalition partners; or (C) was a part of al Qaeda at the time of the alleged offense under this chapter.87 In contrast, a “privileged belligerent” was defined in the same legislation to mean, “an individual belonging to one of the eight categories enumerated in Article IV of the Geneva Convention Relative to the Treatment of Prisoners of War.”88 The terms terrorists, enemy combatants, unlawful enemy combatants, and unprivileged enemy belligerents can all have meaning under the domestic law of a country. However, all persons who fit into those categories are lawful combatants, unlawful combatants, or
85 86 87 88

Military Commissions Act of 2006, Pub. L. No. 109-366, § 948a(1)(A)(i), 120 Stat. 2601. Military Commissions Act § 948a(1)(A)(ii). 10 U.S.C. § 948a(7) (2009). Id. at § 948a(6).

18

noncombatants under international humanitarian law. A terrorist who commits a criminal act in peacetime is a common criminal.89 A terrorist who is a lawful combatant in an armed conflict has combat immunity for lawful hostile acts committed in the course of the armed conflict; but can be prosecuted as a war criminal for unlawful acts committed in the course of the armed conflict, such as for intentionally targeting civilians.90 A terrorist who is a lawful combatant in an armed conflict is entitled to prisoner of war status upon capture; although, once captured, he may be arrested, charged, and tried for crimes committed before the inception of the armed conflict.91 A terrorist who is an unlawful combatant has no combat immunity for hostile acts committed in the course of an armed conflict.92 Hostile acts committed by unlawful combatants are not war crimes.93 Instead, acts such as killing members of the U.S. armed forces and civilians are criminal acts and can be prosecuted under the domestic laws of the country in which the act was committed.94 A terrorist who is captured during the course of an armed conflict is not entitled to prisoner of war status, although he is entitled to the protection of Common Article 3, which includes the right to humane treatment.95 Once captured he may be arrested, charged, and tried for crimes committed before and during the armed conflict.96
89 90 91
92

Gasser, supra note 76, at 552. Id. at 568. Id. at 556. Fleck, supra note 58, at 68. Dörmann, supra note 72, at 70. Id. at 71. Geneva Convention III, supra note 35, Common Article 3, cl. 1. Dörmann, supra note 72, at 71.
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93

94 95
96

A terrorist who commits a criminal act before the onset of an armed conflict, but who does not take up arms during the course of an armed conflict is a noncombatant for the purposes of the laws of armed conflict.97 Such a person is a civilian in regard to the armed conflict.98 If captured during the course of an armed conflict, he can be tried for criminal acts committed in the country in which he was captured under the domestic law of that country, or extradited by agreement between countries to be tried in the country in which the criminal act was committed.99 “Enemy combatant” and “unlawful enemy combatant” were designations under U.S. domestic law, which were meant to place such combatants outside the framework of international humanitarian law.100 These individuals are neither lawful combatants entitled to combat immunity, unlawful combatants not entitled to combat immunity, nor noncombatants— all of whom would be entitled to the protections of Common Article 3. “Unprivileged enemy belligerent” is a current legal definition under U.S. law that is more closely aligned with the designation “unlawful combatant” under international humanitarian law. However, under U.S. law, a person may be designated an “unprivileged enemy belligerent” based solely on the characteristic of having been a member of al Qaeda “at the time of the alleged offense under this chapter.”101 But because combatant status is decided at the time a

97 98
99

Id. at 72. Id.

THE GENEVA CONVENTIONS OF 12 AUGUST 1949 : COMMENTARY IV (1952) at 39, also available at http://www.icrc.org/ihl.nsf/COM/380-600006?OpenDocument.
100 101

MCDONNELL, supra note 43, at 38. 10 U.S.C. § 948a(7)(C).

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person is captured under the Third Geneva Convention,102 a person may be an “unprivileged enemy belligerent” under U.S. law but still be designated a noncombatant under the laws of armed conflict if that person has not engaged in hostilities in the armed conflict. INTERNATIONAL HUMANITARIAN LAW CHALLENGES OF THE BUSH ADMINISTRATION The Bush administration caused two problems for itself with the invasion of Afghanistan in 2001. First, by soliciting from Congress a Joint Resolution authorizing the use of the U.S. Armed Forces “against those responsible” for the recent [9/11] attacks launched against the U.S. in self-defense “against those nations, organizations, or persons” who carried out the attacks103 under the War Powers Resolution,104 it elevated the criminal acts committed by al Qaeda to acts of war. This gave al Qaeda terrorists the status of combatants—lawful or unlawful—in an armed conflict governed by the laws of armed conflict. While the outcome of a trial on criminal charges for murder for 9/11 or a trial on war crimes under the Geneva Conventions for intentionally targeting civilians for 9/11 would no doubt be the same, the members of al Qaeda who fought with the Taliban after the U.S. invaded Afghanistan in 2001 gained the status of lawful combatants in the eyes of the international community.105 They gained this status because the U.S. used military force against the nation of Afghanistan, of which the Taliban was the de facto government, in response to an attack lodged by persons (al Qaeda) allied with the Taliban government, thereby elevating the conflict to the status of an international armed conflict. If the
102 103

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

Authorization for Use of Military Force of 2001, Pub. L. No. 107-40, 115 Stat. 224 (emphasis added).
104 105

War Powers Resolution, 50 U.S.C. §§ 1541-1548 (2006). MCDONNELL, supra note 43, at 259.

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U.S. had pursued the persons who carried out the 9/11 attacks under the treaties and domestic laws governing international law enforcement, the perpetrators would have no status except that of fugitives from the domestic criminal law of the U.S.. Second, by attempting to deny persons captured since 2001 both the protections of the Geneva Conventions and habeas corpus protection under the U.S. Constitution, the Bush administration opened itself up to charges that it committed war crimes under Common Article 3 against detainees who were subject to torturous, humiliating, degrading treatment and who were denied access to either a regularly constituted court, a trial by military commission, or court martial. INTERNATIONAL HUMANITARIAN LAW CHALLENGES FACED BY THE OBAMA ADMINISTRATION The Obama administration has reaffirmed the commitment of the U.S. to international law, including international humanitarian law.106 However, it still faces law of armed conflict issues in Iraq and Afghanistan in light of the withdrawal from Iraq and the hoped-for withdrawal from Afghanistan. One ongoing, but immediate, issue in Afghanistan is the continued problem with civilian casualties. The problem in the field is telling the civilians apart from the combatants. The U.S. is now in Afghanistan at the invitation of the Afghan government, allied against the Taliban and al Qaeda, two non-state parties.107 Under the laws of armed conflict, the conflict in Afghanistan is a non-international armed
106

President Barack Obama, Remarks by the President at the Acceptance of the Nobel Peace Prize in Oslo, Norway, (Dec. 10, 2009), available at http://www.whitehouse.gov/the-pressoffice/remarks-president-acceptance-nobel-peace-prize.
107

Ray Rivera, Biden Assures Karzai of Aid From U.S. Beyond 2014, N.Y. TIMES, Jan. 11, 2011, http://www.nytimes.com/2011/01/12/world/asia/12afghan.html.

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conflict. In a non-international armed conflict, the armed forces of a state party directly engaged in hostilities are lawful combatants.108 The forces of a non-state party directly engaged in hostilities are not granted lawful combatant status, they are unlawful combatants.109 These unlawful combatants are not entitled to prisoner of war status if captured, nor are they immune from prosecution under domestic law for taking up arms.110 Civilians who take no part in hostilities are noncombatants.111 Civilians who directly participate in hostilities lose their

protected status as civilians—they are unlawful combatants.112 Because al Qaeda and the Taliban are non-state parties to a non-international armed conflict113, they cannot gain the status of lawful combatants solely through compliance with requirements of the Third Geneva Convention, i.e., being under military discipline in a chain of command, bearing a fixed distinctive emblem, carrying arms openly, and following the law of war.114 The Taliban and al Qaeda can only gain status as lawful combatants by becoming the militia, volunteer corps, or organized resistance movement of a state party to the conflict,115 for

108

The Relevance of IHL in the Context of Terrorism, International Committee of the Red Cross, July 21, 2005, http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/terrorism-ihl210705?opendocument.
109 110 111 112 113 114 115

Id. Id. BOUCHET-SAULNIER, supra note 66, at 36. Dörmann, supra note 72, at 46. Hague Convention (1907), supra note 38, at art. 1. Geneva Convention III, supra note 35, at art. 4. Id.

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example, by becoming the acknowledged allies of a country like Afghanistan or Pakistan.116 While under the laws of armed conflict all parties to the conflict are bound, if not specifically to the Geneva Conventions, then generally to the laws and customs of war, there is no incentive for stateless militant groups like the Taliban or al Qaeda to comply with the laws of armed conflict in an asymmetrical war with the U.S. military. Wearing distinctive emblems makes them targets, and protecting civilians rather than exploiting them cuts off their chain of supply and source of intelligence. For U.S. troops, it means that only good intelligence and discrimination in targeting will minimize civilian casualties, and that the NATO forces in Afghanistan will face accusations of targeting or not protecting civilians for as long as military forces remain in the field. Another challenge for the Obama administration is the disposition of persons captured during combat operations since he took office. The Bush administration’s attempt to place detainees outside both the protection of Common Article 3 and the habeas corpus protection of those accused of a criminal offense under the U.S. Constitution117 delayed decisions to try captives in Article III courts, by military commissions that pass constitutional muster,118 or by

116

In a snit over pressure to reform his government, Harmid Karzai reportedly threatened to join the Taliban, “apparently suggesting that the militant movement would then be redefined as one of resistance against a foreign occupation rather than a rebellion against an elected government.” Karzai Threatened to Join Taliban, Sources Say, CBS NEWS, May 9, 2010, http://www.cbsnews.com/stories/2010/04/05/world/main6365107.shtml.
117 118

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

A previous attempt, the Military Commissions Act of 2006, § 7, was an unconstitutional suspension of the writ of habeas corpus. Boumediene, 553 U.S. at 792.

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courts-martial.119 Under the Third Geneva Convention, where the status of a captive is in doubt, he is to be treated as a prisoner of war until a competent tribunal determines his status.120 A trial on charges lodged after categorization of the captive must be before a “regularly constituted court.”121 The Bush administration first tried to hold detainees indefinitely without charge or trial, and then used a military commission established under the Military Commissions Act of 2006 to try detainees until the U.S. Supreme Court held in Hamdan v. Rumsfeld that a commission established under the Act lacked the power to proceed because its structure and procedures violated the Geneva Conventions.122 Part of the reluctance to convene a court-martial under the Uniform Code of Military Justice may be due to a fear that trying unlawful combatants by courts-martial would be perceived as elevating their legal statuses to that of lawful combatants. However, under the Third Geneva Convention, determination of a captive’s status is made at the time of capture;123 it is not based on trial venue for any charges subsequent to capture. Common Article 3 does not impose any conditions on trial venue except that it be “a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”124
119

Jordan J. Paust, Court-martial: A Third Option for Trying Al Qaeda and Taliban Detainees, JURIST, Mar. 12, 2010, http://jurist.law.pitt.edu/forumy/2010/03/court-martial-third-option-fortrying.php.
120 121 122 123 124

Geneva Convention III, supra note 35, at art. 5. Id. at art. 3. 548 U.S. 557, 567 (2006). Geneva Convention III, supra note 35, at art. 5. Id. at art. 3(1)(d).

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Lawful combatants, such as members of the Taliban who were captured before the Taliban was driven from power in Afghanistan and should therefore have prisoner of war status, can be tried for violations of the laws of armed conflict (war crimes) that they may have committed before they were captured. Members of al Qaeda, whether they are determined to be lawful combatants who were allied with the Taliban government fighting against U.S. forces at the time they were captured or whether they are unlawful combatants who were captured after they were allied with the Taliban insurgents against the Karzai government, can be tried for violations of the laws of armed conflict committed before the Taliban was driven from power. These members of al Qaeda can be prosecuted for violations of the customary laws of war, including war crimes, for taking up arms as unprivileged combatants, and for criminal acts they may have committed in connection with 9/11 or other terrorist incidents. While the U.S.

continues to struggle with whether “a regularly constituted court” means a court that was in existence before the start of the armed conflict or whether it means a court that is created according to the U.S. domestic law, any of the three U.S. venues chosen would be appropriate for both lawful combatants and unlawful combatants without changing their legal status under international law. A third challenge for the U.S. is the surrender of detainees into the custody of the Afghan and Iraqi governments. President Obama ordered the prison at Guantanamo Bay, Cuba closed by January 2010;125 however, it remains open while the President’s administration works toward disposition of those detainees who have not been released since he took office.126 In Iraq, where
125

Obama Orders Guantanamo Closure, BBC NEWS, Jan. 22, 2009, http://news.bbc.co.uk/2/hi/7845585.stm.
126

Anne E. Kornblut, Obama Admits Guantanamo Won’t Close by January Deadline, WASH. POST, Nov. 18, 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/11/18/ AR2009111800571.html.
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detainees have been turned over to the Iraqi government,127 there were reports of torture of Sunni detainees at a secret prison in Baghdad.128 In Afghanistan, the U.S. military opened a new detention center129 to replace the prison at Bagram Air Base, where detainees were to be handed over to the Afghan government.130 Yet, the situations in Iraq and Afghanistan are not parallel because Iraq lapsed into a civil war between the Sunnis and the Shiites.131 The weakness of the Afghan government in controlling factionalism may result in detentions based on personal grudges and paid informants, which has been charged by Afghans about detentions since the 2001 invasion.132 When an armed conflict is terminated, lawful combatants who are prisoners of war are repatriated to their home country. Unlawful combatants may be held “until they no longer pose a serious security threat,” and they may be prosecuted for unlawfully taking up arms, war crimes, and other crimes.
133

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

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

127

Lindsay Wise, Houston Guard Members Watch Over Detainees in Iraq, HOUS. CHRON., Jan. 10, 2010, http://www.chron.com/news/houston-texas/article/Houston-Guard-members-watchover-detainees-in-Iraq-1715670.php.
128

Sam Dagher, Report Details Torture at Secret Baghdad Prison, N.Y. TIMES, Apr. 27, 2010, http://www.nytimes.com/2010/04/28/world/middleeast/28baghdad.html?_r=1.
129

Rod Nordland, U.S. and Afghanistan Agree on Prisoner Transfer as Part of Long-Term Agreement, N.Y. TIMES, Mar. 9, 2012, http://www.nytimes.com/2012/03/10/world/asia/us-andafghanistan-agree-on-detainee-transfer.html.
130

Alissa J. Rubin, U.S. Frees Detainees, but Afghans’ Anger Persists, N.Y. TIMES, Mar. 19, 2010, http://www.nytimes.com/2010/03/20/world/asia/20kabul.html.
131 132 133

James D. Fearon, Iraq’s Civil War, 86 FOREIGN AFF., Mar.-Apr. 2007, at 2. Rubin, supra note 130. The Relevance of IHL in the Context of Terrorism, supra note 74.

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

Unlawful

combatants are entitled under Common Article 3 to be protected against the passing of sentences and the carrying out of sentences without judicial due process.135 Common Article 3 also requires that all persons, no matter what their combatant status, be treated humanely.136 The U.N. Convention Against Torture, ratified by the U.S. and Afghanistan, but not Iraq, forbids a state to transfer a person to the custody of another state “where there are substantial grounds for believing that he would be in danger of being subjected to torture.”137 The Bush Administration was accused of violating Common Article 3 and the Convention Against Torture, not only for the harsh interrogation techniques employed at the Guantanamo Bay Prison, but also for transferring detainees to overseas prisons where they were tortured,138 a policy allegedly justified by the need for information to fight terrorism.139 The Obama administration, while fulfilling its international humanitarian law obligations in one

134 135 136 137

GREEN, supra note 3, at 306-07. Geneva Convention III, supra note 35, at art. 3. Id.

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (Dec. 10, 1984); Status of Treaties, UN TREATY COLLECTION, http://treaties.un.org/Pages/View Details.aspx?src=TREATY&mtdsg_no=IV-9&chapter=4&lang=en (last visited Mar. 30, 2012).
138

Jane Mayer, Outsourcing Torture: The Secret History of America’s “Extraordinary Rendition” Program, NEW YORKER, Feb. 14, 2005, http://www.newyorker.com/archive/2005/02/14/050214fa_fact6?currentPage=all.
139

David Wippman, Introduction: Do New Wars Call for New Laws?, in NEW WARS, NEW LAWS? APPLYING THE LAWS OF WAR IN 21ST CENTURY CONFLICTS 1, 22-23 (David Wippman & Matthew Evangelista eds. 2005).

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respect by disavowing the use of torture by the U.S.,140 may still be in violation of the Geneva Conventions and the U.N. Convention Against Torture if it transfers detainees to the custody of Iraq or Afghanistan where it has substantial grounds to believe they will be tortured. However, if the Obama administration has to leave troops in Afghanistan to monitor the compliance of those U.S. allies with international humanitarian law because of international pressure to follow through on the armed conflicts in which it has been engaged, it will compromise the commitment the administration has made to completely withdraw U.S. forces from both countries. WOULD A CHANGE IN STATUS FROM “UNLAWFUL COMBATANTS” TO “LAWFUL COMBATANTS” YIELD A DIFFERENT RESULT? Additional Protocol I (1977) confers privileged belligerent status on non-state parties to a conflict if they meet the criteria of being affiliated with a party to the conflict, even if the authority of the adverse party is not recognized,141 and even if they do not bear a distinctive insignia viewable from a distance so as not to be distinguished from civilian noncombatants.142 Accession to this provision binds the parties to the Convention to treat captured combatants as prisoners of war and to repatriate them at the end of the armed conflict unless war crimes charges are warranted.143 Since combatant status is not conferred until capture, the legal status of belligerents involved in the armed conflict does not really matter until a belligerent is taken prisoner. At that point, lawful combatants are granted combat immunity for the lawful acts they committed in the
140

Obama Names Intel Picks, Vows No Torture, MSNBC, Jan. 9, 2009, http://www.msnbc.msn.com/id/28574408/.
141 142 143

Additional Protocol I, supra note 42, at arts. 43-44. MCDONNELL, supra note 43, at 112. Additional Protocol I, supra note 42, at art. 45(2).

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course of the armed conflict.144 They can be charged only with violations of the laws of armed conflict itself or with violations of international human rights law.145 For example, lawful combatants can be charged for grave breaches of the Geneva Conventions, such as targeting civilians, taking hostages, or using civilians as human shields. Unlawful combatants are not granted combat immunity; in addition to charges of grave breaches of the laws of armed conflict, they can be tried for the act of taking up arms itself.146 Still, if a combatant is to be charged with war crimes, such as targeting civilians, taking hostages, or using civilians as human shields, the charges lodged will be the same whether the combatant’s status is lawful or unlawful. Combatant status matters to civilians because they are entitled to protection from targeted attack.147 It does not matter to lawful or unlawful combatants because they are lawful targets in either case. Combatants who masquerade as civilians are still lawful targets. Taking up arms against the opposing military force is what makes a combatant a combatant.148 As a result, there is no advantage to a combatant to gain lawful combatant status while he is at liberty, or any incentive to conform his acts to the requirements of international humanitarian law. If he is captured, lawful combatant status will not protect him from charges for violations of the laws of war, compared to which the charges for taking up arms are de minimus. Since he will not be released until the end of the armed conflict in either case, the only penalty he will face for taking

144 145 146 147 148

MCDONNELL, supra note 43, at 110. Id. Id. at 112. Gasser, supra note 76, at 554. Fleck, supra note 58, at 68.

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up arms is the possibility of longer confinement than that faced by lawful combatants who are prisoners only so long as they are prisoners of war. CONCLUSION While the U.S. has reasonable concerns about the ramifications of conferring combatant status on persons who do not already meet the criteria of Geneva Convention III, Article 4, that is, in effect, what the U.S. did when it entered into a non-international armed conflict with al Qaeda in Afghanistan. By conferring an unlawful combatant status on al Qaeda, as the Court found that it did in Hamdan v. Rumsfeld when it instituted a military action against a terrorist organization, the U.S. elevated common criminals to a legal status under the laws of war to which they would otherwise not be entitled. When a political decision is taken to invoke the laws of armed conflict by deploying military forces to track down persons who are criminals under U.S. domestic laws, one of the unintended consequences is that the laws of armed conflict impose legal duties and constraints on the pursuers. The difficulty in sorting out the provisions of, and distinctions between, international human rights law, the laws of armed conflict, and international and domestic criminal law is exacerbated when a national military engages in an armed conflict with a non-state party outside the nation’s borders with the purpose of hunting down and destroying criminals. To members of the public, if it looks like a war, sounds like a war, and feels like a war, it must be a war. If a nation is “at war,” then the persons doing the fighting must be “warriors.” The difference between an international armed conflict and a non-international armed conflict is not made clearer when the state party is bound to fight in compliance with the Geneva Conventions and Hague Rules, but the non-state party has no incentive to fight under these same rules. When it is obvious that the non-state party would lose its only strategic and tactical

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advantage against a superior military force if it complies with the rules of war by protecting civilians and identifying itself by a distinctive insignia, then there is a temptation placed on the state party to the conflict to use the same strategies and tactics in order to “even up” the fight. This is not what the Geneva Conventions were designed to accomplish in the High Contracting Parties’ attempt to alleviate unnecessary suffering in time of war. The American experience in Afghanistan and Iraq demonstrates that the rules by which the U.S. fights its wars, the laws of armed conflict to which the U.S. is bound under the Geneva Conventions, the Hague Rules, and the customary laws of war, cannot necessarily rescue a political decision to use the U.S. military as an instrument of international law enforcement or as an instrument of regime change. But neither can the laws of armed conflict be changed to suit the needs of a military force from conflict to conflict, depending on the enemy. In that regard, the experience of the U.S. fighting against al Qaeda terrorists in Afghanistan and politicallymotivated factions in Iraq may be instructive as to further development of international humanitarian law to prevent unnecessary suffering in times of war.

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