Unlawful combatant

An unlawful combatant, illegal combatant or unprivileged combatant/belligerent is, according to United States law, a person who directly engages in armed conflict in violation of the laws of war and therefore not protected by the Geneva Conventions.
The International Committee of the Red Cross points out that the terms "unlawful combatant", "illegal combatant" or "unprivileged combatant/belligerent" are not defined in any international agreements.
The Geneva Conventions apply in wars between two or more sovereign states. of the Third Geneva Convention states that the status of detainees whose combatant status is in doubt should be determined by a "competent tribunal". Until such time, they must be treated as prisoners of war. After a "competent tribunal" has determined that an individual is not a lawful combatant, the "detaining power" may choose to accord the individual the rights and privileges of a prisoner of war as described in the Third Geneva Convention, but is not required to do so. An individual who is not a lawful combatant, who is not a national of a neutral state, and who is not a national of a co-belligerent state, retains rights and privileges under the Fourth Geneva Convention so that he must be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial".
While the concept of an unlawful combatant is included in the Third Geneva Convention, the phrase itself does not appear in the document. Article 4 of the Third Geneva Convention does describe categories under which a person may be entitled to POW status. There are other international treaties that deny lawful combatant status for mercenaries and children.
In the United States, the Military Commissions Act of 2006 codified the legal definition of this term and invested the U.S. President with broad discretion to determine whether a person may be designated an unlawful enemy combatant under United States law.
The assumption that unlawful combatant status exists as a separate category to lawful combatant and civilian is contradicted by the findings of the International Criminal Tribunal for the Former Yugoslavia in the Celebici Judgment. The judgment quoted the 1958 International Committee of the Red Cross (ICRC) commentary on the Fourth Geneva Convention: "Every person in enemy hands must be either a prisoner of war and, as such, be covered by the Third Convention; or a civilian covered by the Fourth Convention. "There is no" intermediate status; nobody in enemy hands can be outside the law". Thus, anyone not entitled to prisoner of war status maintains the same rights as a civilian, and must be prosecuted under domestic law. Neither status exists in non-international conflict, with all parties equally protected under International Humanitarian Law.
The Geneva Conventions do not recognize any status of lawfulness for combatants in conflicts not involving two or more nation states, such as during civil wars between government's forces, and insurgents. A state in such a conflict is legally bound only to observe Common Article 3 of the Geneva Conventions and may ignore all of the other Articles. But each one of them is completely free to apply all or part of the remaining Articles of the Convention.
International law and practice.
The term "unlawful combatant" has been used for the past century in legal literature, military manuals, and case law. However, unlike the terms "combatant", "prisoner of war", and "civilian", the term "unlawful combatant" is not mentioned in either the Hague or the Geneva Conventions. So while the former terms are well understood and clear under international law, the term "unlawful combatant" is not.
At the First Hague Conference, which opened on 6 May 1899, there was a disagreement between the Great Powers—which considered "francs-tireurs" unlawful combatants subject to execution on capture—and a group of small countries headed by Belgium—which opposed the very principle of the rights and duties of armies of occupation and demanded an unlimited right of resistance for the population of occupied territories. As a compromise, the Russian delegate, F. F. Martens, proposed the Martens Clause, which is included in the preamble to the "1899 Hague Convention II – Laws and Customs of War on Land". Similar wording has been incorporated into many subsequent treaties that cover extensions to humanitarian law.
Prisoners of war.
The Geneva Convention relative to the Treatment of Prisoners of War, 12 August 1949 (GCIII) of 1949 defines the requirements for a captive to be eligible for treatment as a POW. A lawful combatant is a person who commits belligerent acts, and, when captured, is treated as a POW. An "unlawful combatant" is someone who commits belligerent acts but does not qualify for POW status under GCIII Articles 4 and 5.
These terms thus divide combatants in a war zone into two classes: those in armies and organised militias and the like (lawful combatants), and those who are not. The critical distinction is that a "lawful combatant" (defined above) cannot be held personally responsible for violations of civilian laws that are permissible under the laws and customs of war; and if captured, a lawful combatant must be treated as a prisoner of war by the enemy under the conditions laid down in the Third Geneva Convention.
If there is any doubt about whether a detained alleged combatant is a "lawful combatant" then the combatant must be held as a prisoner of war until his or her status has been determined by "a competent tribunal". If that tribunal rules that a combatant is an "unlawful combatant" then the person's status changes to that of a civilian which may give them some rights under the Fourth Geneva Convention.
Persons who are not prisoners of war in an international conflict.
A civilian "in the hands" of the enemy often gains rights through the "Geneva Convention Relative to the Protection of Civilian Persons in Time of War", 12 August 1949 (GCIV), if they qualify as a "protected person".
If the individual fulfills the criteria as a protected person, they are entitled to all the protections mentioned in GCIV. In a war zone, a national of a neutral state, with normal diplomatic representation, is not a protected person under GCIV.
If a combatant does not qualify as a POW, then, if they qualify as a protected person, they receive all the rights which a non-combatant civilian receives under GCIV, but the party to the conflict may invoke Articles of GCIV to curtail those rights. The relevant Articles are 5 and 42.
It is likely that if a competent tribunal under GCIII Article 5 finds they are an "unlawful combatant", and if they are a protected person under GCIV, the Party to the conflict will invoke GCIV Article 5. In this case, the "unlawful combatant" does not have rights under the present Convention as granting them those rights would be prejudicial to the security of the concerned state. They do, however, retain the right "... to be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention",
If, after a "fair and regular trial", an individual is found guilty of a crime, they can be punished by whatever lawful methods are available to the party to the conflict.
If the party does not use Article 5 of GCIV, the party may invoke Article 42 of GCIV and use "internment" to detain the "unlawful combatant".
For those nations that have ratified Protocol I of the Geneva Conventions, are also bound by Article 45.3 of that protocol which curtails GCIV Article 5.
Persons who are not prisoners of war in an internal conflict.
Civilians are covered by GCIV Article 3:
Combatants who do not qualify for prisoner of war status.
If the combatant is engaged in "armed conflict not of an international character" then under the Article 3 of the general provisions of the Geneva Conventions they should be "treated humanely", and if tried "sentences must ... be pronounced by a regularly constituted court"
The last time that American and British unlawful combatants were executed, after "a regularly constituted court", was the Luanda Trial as mercenaries.
Parole violation.
A combatant who is a POW, and who is subsequently paroled on the condition that he will not take up arms against the belligerent power (or co-belligerent powers) that had held him as a prisoner, is considered a parole violator if he breaks said condition. He is regarded as guilty of a breach in the laws and customs of war, unless there are mitigating circumstances such as coercion by his state to break his parole. As with other combatants, he is still protected by the Third Geneva Convention (GCIII), until a competent tribunal finds him in violation of his parole.
The Geneva Convention (1929) made no mention of parole, but as it was supplemental to the Hague conventions, it relied on the wording of Hague to address this issue. The authors of GCIII, 1949, decided to include a reference with some modification to parole, because during the Second World War, some belligerent countries did permit such release to some extent.
Article 21 of GCIII (1949) reproduces the Articles 10 and 11 of the "Hague IV: Regulations Respecting the Laws and Customs of War on Land", 18 October 1907, but did not include Article 12, which provides: "Prisoners of war liberated on parole and recaptured bearing arms against the Government to whom they had pledged their honour, or against the allies of that Government, forfeit their right to be treated as prisoners of war, and can be brought before the courts". Nevertheless, contained in the commentary on GCIII: The only safeguard available to a parole violator—who has been coerced into fighting, and who has been recaptured by the Power that detained him previously—is contained in the procedural guarantees to which he is entitled, pursuant to Article 85 of GCIII.
In the opinion of Major Gary D. Brown, United States Air Force (USAF), this means that "[T]he Hague Convention specified that parole breakers would forfeit their right to be treated as prisoners of war if recaptured. The 1949 Geneva Convention is less direct on the issue. A recaptured parole violator under the Convention would be afforded the opportunity to defend himself against charges of parole breaking. In the interim, the accused violator would be entitled to P[o]W status".
Mercenaries.
Under Article 47 of Protocol I (Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts) it is stated in the first sentence "A mercenary shall not have the right to be a combatant or a prisoner of war".
On 4 December 1989 the United Nations passed resolution 44/34 the "International Convention against the Recruitment, Use, Financing and Training of Mercenaries". It entered into force on 20 October 2001 and is usually known as the UN Mercenary Convention. Article 2 makes it an offence to employ a mercenary and Article 3.1 states that "A mercenary, as defined in article 1 of the present Convention, who participates directly in hostilities or in a concerted act of violence, as the case may be, commits an offence for the purposes of the Convention".
Child soldiers.
The United Nations Convention on the Rights of the Child, Article 38, (1989) proclaimed: "State parties shall take all feasible measures to ensure that persons who have not attained the age of 15 years do not take a direct part in hostilities".
In a 2003 briefing for the 4th UN Security Council open debate on children and armed conflict by Human Rights Watch they state in their introduction that:
In recent years progress has been made in developing a legal and policy framework for protecting children involved in armed conflict. The Optional Protocol to the Convention on the Rights of the Child on children in armed conflict, which came into force in February 2002, prohibits the direct use of any child under the age of 18 in armed conflict and prohibits all use of under-18s by non-state armed groups. By mid-December 2003, 67 states had ratified the Optional Protocol, including seven mentioned in this report (The seven are: Afghanistan, Democratic Republic of Congo, Philippines, Rwanda, Sierra Leone, Sri Lanka and Uganda). The UN Committee on the Rights of the Child had begun examining governments' reports on steps taken to implement the Protocol. [Articles 8(2)(b)(xxvi), (e)(vii) of] the Rome Statute of the International Criminal Court (1998) defines the recruitment of children under the age of 15 as a war crime.
On 26 July 2005, the United Nations Security Council unanimously passed UN Security Council Resolution 1612, the sixth in a series of resolutions about children and armed conflict. Resolution 1612 established the first comprehensive monitoring and reporting system for enforcing compliance among those groups using child soldiers in armed conflict.
National law.
United States.
Two separate issues to be determined in evaluating the category "unlawful combatant" as applied by the government of the United States. One issue is whether such a category can exist without violating the Geneva Conventions, and another issue is, if such a category exists, what steps the US executive branch must take to comply with municipal laws as interpreted by the judicial branch of the federal government.
1942 Quirin case.
The term "unlawful combatant" has been used for the past century in legal literature, military manuals and case law. The term "unlawful combatants" was first used in U.S. municipal law in a 1942 United States Supreme Court decision in the case "Ex parte Quirin". In that case, the Supreme Court upheld the jurisdiction of a US military tribunal over the trial of eight German saboteurs in the US during World War II:
The validity of the case as basis for denying prisoners in the War on Terrorism the protection of the Geneva Conventions has been disputed. A report by the American Bar Association on the case commented:
Since the 1942 Quirin case, the US. signed and ratified the 1949 Geneva Conventions, which are therefore considered to be part of US federal law, in accordance with the Supremacy Clause in the Constitution of the United States. In addition, the US Supreme Court invalidated the premise, in "Hamdan v. Rumsfeld", by ruling that Common Article Three of the Geneva Conventions applies to detainees in the War on Terror and that the Military Commissions that were used to try suspects were in violation of U.S. and international law.
Congress addressed the issues in the Military Commissions Act of 2006 so that enemy combatants and unlawful enemy combatants might be tried under military commissions; however, on 12 June 2008, the Supreme Court ruled, in "Boumediene v. Bush", that Guantanamo Bay captives were entitled to access the US justice system and that the military commissions constituted under the Military Commissions Act of 2006 fell short of what was required of a court under the United States constitution (see the section below for more details).
2001 Presidential military order.
In the wake of the September 11, 2001 attacks, the US Congress passed a resolution known as the "Authorization for Use of Military Force" (AUMF) on 18 September 2001. In this, Congress invoked the War Powers Resolution and stated:
That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on 11 September 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Using the authorization granted to him by Congress, on 13 November 2001, President Bush issued a Presidential Military Order: "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism" which allowed "individuals ... to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals", where such individuals are members of the organization known as al Qa'ida; or has conspired or committed acts of international terrorism, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy. The order also specifies that the detainees are to be treated humanely.
The length of time for which a detention of such individuals can continue before being tried by a military tribunal is not specified in the military order. The military order uses the term "detainees" to describe the individuals detained under the military order. The U.S. administration chooses to describe the detainees held under the military order as "illegal enemy combatants".
With the U.S. invasion of Afghanistan, some lawyers in the Justice Department's Office of Legal Counsel and in the office of White House counsel Alberto Gonzales advised President Bush that he did not have to comply with the Geneva Conventions in handling detainees in the War on Terrorism. This applied not only to members of al Qa'ida but the entire Taliban, because, they argued, Afghanistan was a "failed state".
Despite opposition from the U.S. State Department, which warned against ignoring the Geneva Conventions, the Bush administration thenceforth began holding such individuals captured in Afghanistan under the military order and not under the usual conditions of Prisoners of War. For those U.S. citizens detained under the military order, U.S. officials, such as Vice President Dick Cheney, argue that the urgency of the post-9/11 environment called for such tactics in administration's war against terrorism.
Most of the individuals detained by the U.S. military on the orders of the U.S. administration were initially captured in Afghanistan. The foreign detainees are held in the Guantanamo Bay detention camp established for the purpose at the Guantanamo Bay Naval Base, Cuba. Guantanamo was chosen because, although it is under the "de facto" control of the United States administration, it is not a sovereign territory of the United States, and a previous Supreme Court ruling "Johnson v. Eisentrager" in 1950 had ruled that U.S. courts had no jurisdiction over enemy aliens held outside the USA.
In "Rasul v. Bush", the Supreme Court ruled that "the U.S. Guantanamo Bay, Cuba, Naval Base, which the United States occupies under a lease and treaty recognizing Cuba's ultimate sovereignty, but giving this country complete jurisdiction and control for so long as it does not abandon the leased areas", and that as the United States had complete jurisdiction, the federal courts have the authority under the federal "habeas corpus" statute to decide whether foreign nationals (non-U.S. citizens) held in Guantanamo Bay were rightfully imprisoned. This ruling largely overturned the judicial advantage for the U.S. administration of using the Naval Base that "Johnson v. Eisentrager" seemed to have conferred.
Legal challenges.
There have been a number of legal challenges made on behalf of the detainees held in Guantanamo Bay detention camp and in other places. These include:
Yaser Hamdi was captured in Afghanistan in November 2001. He was taken to Guantanamo Bay Naval Base, but was transferred to jails in Virginia and South Carolina after it became known that he was a U.S. citizen. On 23 September 2004, the United States Justice Department agreed to release Hamdi to Saudi Arabia, where he is also a citizen, on the condition that he gave up his U.S. citizenship. The deal also bars Hamdi from visiting certain countries and to inform Saudi officials if he plans to leave the kingdom. He was a party to a Supreme Court decision "Hamdi v. Rumsfeld" which issued a decision on 28 June 2004, repudiating the U.S. government's unilateral assertion of executive authority to suspend the constitutional protections of individual liberty of a U.S. citizen. The Court recognized the power of the government to detain unlawful combatants, but ruled that detainees must have the ability to challenge their detention before an impartial judge. Though no single opinion of the Court commanded a majority, eight of the nine justices of the Court agreed that the Executive Branch does not have the power to hold indefinitely a U.S. citizen without basic due process protections enforceable through judicial review.
On 8 May 2002, José Padilla, also known as Abdullah al-Muhajir, was arrested by FBI agents at Chicago's O'Hare International Airport and held as material witness on the warrant issued in New York State about the 2001 9/11 attacks. On 9 June 2002 President Bush issued an order to Secretary Rumsfeld to detain Padilla as an "enemy combatant". The order justified the detention by leaning on the AUMF which authorized the President to "use all necessary force against those nations, organizations, or "persons"" and in the opinion of the administration a U.S. citizen can be an enemy combatant (this was decided by the United States Supreme Court in the case of "Ex parte Quirin"). Padilla is being detained in Miami and is accused of providing material support for terrorism.
Combatant Status Review Tribunal.
Following the "Hamdan v. Rumsfeld"-ruling (November 2004) the Bush administration has begun using Combatant Status Review Tribunals to determine the status of detainees. By doing so the obligation under Article 5 of the GCIII was to be addressed.
However, critics maintain these CSRTs are inadequate to warrant acceptance as "competent tribunal". Their principal arguments are:
Notable cases pointed to by critics as demonstrating the flawed nature of the procedure include: Mustafa Ait Idir, Moazzam Begg, Murat Kurnaz, Feroz Abbasi, and Martin Mubanga. A comment by legal experts states:
It appears ... that the procedures of the Combatant Status Review Tribunals do not qualify as status determination under the Third Geneva Convention. ... The fact that no status determination had taken place according to the Third Geneva Convention was sufficient reason for a judge from the District Court of Columbia dealing with a habeas petition, to stay proceedings before a military commission. Judge Robertson in Hamdan v. Rumsfeld held that the Third Geneva Convention, which he considered selfexecuting, had not been complied with since a Combatant Status Review Tribunal could not be considered a 'competent tribunal' pursuant to article 5 of the Third Geneva Convention.
James Crisfield, the legal advisor to the Tribunals, offered his legal opinion, that CSRT "do not have the discretion to determine that a detainee should be classified as a prisoner of war — only whether the detainee satisfies the definition of 'enemy combatant'". Determining whether a captive should be classified as a prisoner of war is the sole purpose of a competent tribunal.
Analysis of these Tribunals by two lawyers for Guananamo detainees, Professor Mark P. Denbeaux of the Seton Hall University School of Law, his son Joshua Denbeaux, and some of his law students resulted in a report called "No-hearing hearings". In essence it supports the criticism voiced above.
Military commissions.
As of 17 October 2006, when President Bush signed the Military Commissions Act of 2006 into law, Title 10 of the United States Code was amended to include a definition of an "unlawful enemy combatant" as
The definition of a lawful enemy combatant is also given, and much of the rest of the law sets out the specific procedures for determining whether a given detainee of the U.S. armed forces is an unlawful enemy combatant and how such combatants may or may not be treated in general and tried for their crimes in particular. Among its more controversial provisions, the law stipulates that a non United States citizen held as an enemy combatant or is awaiting such determination may not seek habeas corpus relief. Such detainees must simply wait until the military convene a detainee status review tribunal (under the procedures described in the Detainee Treatment Act of 2005).
Immediately after Bush signed the Act into law, the U.S. Justice Department notified the U.S. Court of Appeals for the District of Columbia that the Court no longer had jurisdiction over a combined "habeas" case that it had been considering since 2004. A notice dated the following day listed 196 other pending habeas cases for which it made the same claim.
Of the first three war crimes cases brought against Guantanamo Bay detainees under the Military Commissions Act, one resulted in a plea bargain and the two others were dismissed on jurisdictional grounds.
On 4 June 2007, in two separate cases, military tribunals dismissed charges against detainees who had been designated as "enemy combatants" but not as "unlawful enemy combatants". The first case was that of Omar Khadr, a Canadian who had been designated as an "enemy combatant" in 2004. Khadr was accused of throwing a grenade during a firefight in Afghanistan in 2002. Colonel Peter Brownback ruled that the military tribunals, created to deal with "unlawful enemy combatants", had no jurisdiction over detainees who had been designated only as "enemy combatants". He dismissed without prejudice all charges against Khadr. Also on 4 June, Captain Keith J. Allred reached the same conclusion in the case of Salim Ahmed Hamdan.
The United States Department of Defense responded by stating: "We believe that Congress intended to grant jurisdiction under the Military Commissions Act to individuals, like Mr. Khadr, who are being held as enemy combatants under existing C.S.R.T. procedures". That position was called "dead wrong" by Specter.
Supreme Court ruling on Military Commissions Act of 2006.
On 12 June 2008, the Supreme Court ruled, in Boumediene v. Bush, 5-4 that Guantanamo captives were entitled to access the US justice system. Justice Anthony Kennedy wrote in the majority opinion:
The Court also ruled that the Combatant Status Review Tribunals were "inadequate". Ruth Bader Ginsburg, Stephen Breyer, David Souter and John Paul Stevens joined Kennedy in the majority.
Chief Justice John Roberts, in the minority opinion, called the CSR Tribunals
Samuel Alito, Clarence Thomas and Antonin Scalia joined Roberts in the dissent.
Vincent Warren, the executive director of the Center for Constitutional Rights, the organization that initiated the action that triggered the Supreme Court ruling responded:
2009.
In January and February 2009, President Barack Obama's nominees for Attorney General and Solicitor General, Eric Holder and Elena Kagan, both testified they agreed the U.S. government may detain combatants in accordance with the laws of war until the end of the war, (this sidesteps the issue of deciding whether the combatant is a lawful or unlawful combatant and the need to try them). When asked by Senator Lindsey Graham "If our intelligence agencies should capture someone in the Philippines that is suspected of financing Al Qaeda worldwide, would you consider that person part of the battlefield?" Both Holder and Kagan said that they would.
On 28 October 2009, President Obama signed the Military Commissions Act of 2009 into law, which was included in the National Defense Authorization Act for Fiscal Year 2010 (). While critics said it is an improvement over prior versions of military-commissions passed during the Bush administration, it still fails to provide many of the fundamental elements of a fair trial.
Other countries.
Israel, since the 2002 "Imprisonment of Illegal Combatants Law", makes theoretical distinctions between lawful and unlawful combatants and the legal status thereof.
The United Kingdom Crown Prosecution Service (CPS) makes the distinction. The CPS conducted a "through review of the evidence concerning the deaths of Sergeant Steven Roberts of the 2nd Royal Tank Regiment and Mr Zaher Zaher, an Iraqi national, at Az Zubayr, Iraq on 24 March 2003":
International criticism.
The designation of some prisoners as "unlawful combatants", has been the subject of criticism by international human rights institutions; including Amnesty International, Human Rights Watch and the International Committee of the Red Cross.
In response to the U.S.-led military campaign in Afghanistan, a legal advisor at the Legal Division of the ICRC, published a paper on the subject, in which it states:
Whereas the terms "combatant" "prisoner of war" and "civilian" are generally used and defined in the treaties of international humanitarian law, the terms "unlawful combatant", "unprivileged combatants/belligerents" do not appear in them. They have, however, been frequently used at least since the beginning of the last century in legal literature, military manuals and case law. The connotations given to these terms and their consequences for the applicable protection regime are not always very clear.
Human Rights Watch have pointed out that in a judgement, the International Criminal Tribunal for the Former Yugoslavia interpreted the International Committee of the Red Cross, "Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War" (Geneva: 1958) to mean that:
there is no gap between the Third and Fourth Geneva Conventions. If an individual is not entitled to the protection of the Third Convention as a prisoner of war ... he or she necessarily falls within the ambit of [the Fourth Convention], provided that its article 4 requirements [defining a protected person] are satisfied.
This does not mean that the status of unlawful combatant does not exist because in the opinion of the ICRC "If civilians directly engage in hostilities, they are considered 'unlawful' or 'unprivileged' combatants or belligerents ... [and] They may be prosecuted under the domestic law of the detaining state for such action".
Critics of the U.S. internment at Guantanamo Bay worry that the introduction of the "unlawful combatant" status sets a dangerous precedent for other regimes to follow. When the government of Liberia detained American activist Hassan Bility in 2002, Liberian authorities dismissed the complaints of the United States, responding that he had been detained as an unlawful combatant.