An individual’s status is incredibly important in an armed conflict. It determines who and what may be targeted and who and what may not be targeted and the protections they are to be afforded under the laws of war.[1] In this text the relevance of legal status under IHL and challenges to the established categories of civilians/combatants shall be the primary focus. To demonstrate the significance of status under international humanitarian law (IHL), the legal ramifications of possessing a primary status of combatant or civilian will first be explored. This paper shall then assess the rise of the three-category approach by the United States and discuss the ways in which the use of the term ‘Unlawful Combatants’ is unsuitable by looking at how it has been used by the US after the events of September 11th, 2001. This text shall identify how the use of ‘Unlawful Combatants’ as a third category leads to a legal black hole where one’s rights as per the Third and Fourth Geneva Conventions are effectively stripped. Lastly, this paper shall look at the progress made by the United States in addressing the issues caused by the three-category approach by looking at the policies of the Obama and Trump administrations. In conclusion, this paper shall find that the use of ‘Unlawful Combatants’ as seen through the practice of the United States is dangerous and inappropriate.
Why is status important under IHL?
In IHL, much hinges on an individual’s primary status in an armed conflict. In international armed conflicts, the dichotomy is that between civilians and combatants. There are different rights or duties for persons falling within these different categories, namely a person’s status as a civilian or combatant determines their targetability, their secondary status upon capture, and the applicable legal framework to their actions.[2] The distinction between the two is made in special consideration to a cardinal principle of IHL, that of the principle of distinction.[3] This obliges parties to the conflict to distinguish between civilians and combatants (as well as civilian objects and military objectives) and to limit attacks to combatants and military objectives.
Combatants
In an IAC, the term combatant, as defined in Article 4 of the Third Geneva Convention[4] and Article 43 of Additional Protocol I,[5] is an individual belonging to the armed forces that has the right to participate in hostilities. Combatants are lawful military targets and are targetable.[6] As per Article 4 of GCIII they are required to fulfil the following conditions, in that they must:
- follow the conditions of operating under responsible command
- wear a fixed distinctive sign
- carry arms openly, and;
- respect International Humanitarian Law
Combatants enjoy immunity against prosecution for crimes that would otherwise be common criminal offences in times of peace unless these crimes amount to war crimes.[7] Combatant immunity allows them to conduct lawful acts of war in the form of killing or wounding enemy combatants and destroying enemy property so long as they are part of lawful military engagements.[8] They are given Prisoner of War (POW) status upon capture.[9] The Third Geneva Convention provides comprehensive protections for POWs regarding their treatment during detention which includes protection against physical violence, torture, the right of respect for their persons and honour, the right to retain their personal property, the right to send and receive correspondence with family, as well as the right to receive aid from the ICRC.[10] Those who fail to fulfil the conditions prescribed in Article 4 of the Third Geneva Convention are nonetheless granted minimum protections under Article 75 of Additional Protocol I which has customary status.[11] The law applicable in non-international armed conflicts does not include combatants as it does not guarantee a right to participate in hostilities and impunity for those acts.
Civilians
Civilians, as per the principle of distinction, are entitled to protection from the dangers arising from military operations and must not be made the object of attack.[12] They are defined negatively as all those not belonging to the category of combatants.[13] Civilians do not have combatant immunity and therefore have no right to participate directly in hostilities. They can be prosecuted under domestic law for doing so and can also be prosecuted for war crimes. If they find themselves in enemy hands, they become ‘protected persons’ and are entitled to protections enshrined in the Fourth Geneva Convention if they fulfil the nationality requirements under Article 4.[14] They are entitled to a wide range of protections including that of humane treatment, the right of respect for their persons and honour, prohibition on forced labour and collective punishment etc.[15] However, where civilians engage in activities hostile to the security of the detaining state, they cannot claim the protections of the Fourth Geneva Convention.[16] Even so, they are still entitled to the minimum protections enshrined in Article 75 of Additional Protocol I.
Whilst civilians are not targetable by enemy forces, Article 51(3) of Additional Protocol I provides that they are only entitled to protection from attack ‘unless and for such time as they take a direct part in hostilities’.
Civilians who Directly Participate in Hostilities
As per the ICRC’s interpretive guidance, specific criteria exists in order to set legal parameters for the possible targeting of civilians who directly participate in hostilities (DPIH).[17] In regards to the constitutive elements, the ICRC has three conditions that must be fulfilled in order to qualify an act of DPIHing: threshold of harm, direct causation, and belligerent nexus. Firstly, for Threshold of Harm, one must be able to demonstrate the act’s likeliness to adversely affect the military operations/capacity of a party to an armed conflict or the act’s likeliness to inflict death, injury, or destruction on persons or objects protected against direct attack.[18] Next, for Direct Causation, a direct causal link between the act and harm likely to result from it, or from a coordinated military operation of which that act constitutes, must be made evident.[19] Finally, for Belligerent Nexus, the act must be designed to fulfill the first category in a manner that directly supports a party to the conflict and is detrimental to another party to the armed conflict.[20]
The issue is that civilians are only targetable “unless and for such time” as they take a direct part in hostilities. They do not cease to be civilians, however, temporarily lose that protection so long as they DPIH – as per the ICRC, this means that they “lose and regain protection against direct attack in parallel with the intervals of their engagement in direct participation in hostilities”.[21] This results in a ‘revolving door’ of civilian protection, where they are targetable when they DPIH, and no longer targetable when they do not satisfy the cumulative criteria discussed above. This makes it difficult for combatants in increasingly civilianised conflicts to ascertain whether a civilian is targetable and for how long.
In sum, under IHL, combatants who are eligible for POW status receive protection under the Third Geneva Convention, and civilians who are eligible for protected person status are protected under the Fourth Geneva Convention. Those who are not deemed so eligible are nevertheless granted fundamental rights under Article 75 of Additional Protocol I. Nobody is left outside the scope of the rules of war and therefore unprotected. However, the United States has attempted to place those combatants who fail to fulfil the requirements of Article 4 of the Third Geneva Convention as well as civilians who DPIH into a third category of ‘unlawful combatants’ and therefore outside of the law entirely.
The Legal Black Hole of Unlawful Combatants
History
After the events of September 11th, 2001 the US argued that the increasing urbanisation and civilianisation of armed conflicts had drastically changed the nature of war and rendered the Geneva Conventions outdated.[22] Ironically, the US took this stance while also being one of three member nations of the UN[23]&[24] to sign but not ratify either of the Additional Protocols of the Geneva Conventions which addressed the evolving nature of armed conflicts.[25] Subsequently, in order to address their concerns the US started to use the label ‘Unlawful Combatants’ to identify certain fighters in Afghanistan.[26] Relying on a case of German terrorists during World War 2 who attempted to commit a terrorist act in disguise and classified as ‘unlawful combatants,’[27] the overwhelming majority of the US’s defense of this characterisation started after the events of September 11th.[28] In labeling individuals as not combatants or civilians, who were entitled to the secondary status of Prisoners of War or protected persons, but instead as ‘unlawful combatants,’ US forces essentially found an illegitimate legal loophole to disregard international humanitarian laws surrounding their treatment. Legally, what the use of this term essentially signified, was that individuals who were found in violation of domestic law and IHL were thereby exempt from any and all protections guaranteed by the law of armed conflict and therefore were denied their rights.
The problem with this however, is that the US tries classifying individuals who violate the rules of war into their own category, aside from the two established categories of civilian and combatant, thus creating a three-category approach. In particular, the US used this term to describe the enemy fighters of Al-Qaeda, who they argued did not follow the guidelines of the laws of war and could not be classified as civilians or combatants.26 This move was a direct challenge to the established dichotomy of civilians and combatants as per the Geneva Conventions and attempted to establish a murky and illegal precedent for a three-category approach.
A Three-Category Approach and Contemporary Issues with Status
Advocates for a three-category approach often cite the new, modernized nature of warfare and how fighting with non-state affiliated armed groups blurs the line between civilians and combatants.[29] They find issues specifically with IHL’s protection of terrorists who fail to distinguish themselves from civilian populations despite engaging in hostilities via direct violence or acting in concert with a covert intelligence plan.[30] Scholars such as Curtis A Bradley shared this concern and inferred perverse incentives with the Geneva Conventions’ two category approach.[31] He argued that it limits the abilities of a nation to target and detain fighters who purposefully fail to distinguish themselves as members of an armed force. The ICRC acknowledged this and commented that, “if anyone who is not a combatant is a civilian, in many asymmetric conflicts the enemy consists exclusively of civilians.”[32] From Bradley’s perspective, this is a problem because if an entire group of people can only be classified as civilians, a state’s ability to target its enemies is limited because unlike combatants, civilians cannot be classified as military targets unless directly participating in hostilities. Furthermore, Bradley echoes that the conception of ‘civilians’ in the Geneva Convention fails to reconcile with the new realities of increasing civilianization of armed conflicts, referring specifically to the revolving door conundrum outlined above where a fighter keeps conveniently switching between the two categories to prevent being targeted.[33]
However, the use of the third category by the Bush administration[34] in its controversial detaining and targeting of enemy fighters effectively creates a legal black hole where if one is neither a combatant nor civilian they have none of the rights associated with either Prisoners of War or Protected Persons. This is because while captured combatants are protected as POWs pursuant to the Third Geneva Convention and civilians are protected persons under the Fourth Geneva Convention, unlawful combatants are unprotected as a result of failing to fall within these two categories and the US’ approach aims to prevent the application of IHL in its entirety. This is fundamentally at odds with the laws of war. As discussed above, when an individual is a combatant or a civilian and fails to fall within the definition of Prisoner of War or Protected Person, they are still entitled to humane treatment under Article 75 of Additional Protocol I. There is no black hole in which they fall outside the scope of IHL.
A common landing spot for fighters classified as unlawful combatants was Guantanamo Bay, where hundreds of people were detained.[35] For instance, Saifullah Paracha, a man soon to be released back to his home and family in Pakistan was directly affected by the US’s three-category approach.[36] This is because during the US’s detaining of suspected Al-Qaeda fighters, warlords in rural Pakistan and Afghanistan gave their prisoners over to US custody, while also often giving little to no information or intelligence regarding how they were connected to Al-Qaeda.[37] This resulted in many ‘fighters’ being detained in Guantanamo Bay while simultaneously lacking any criminal charges. Moreover, this is significant because it helps illustrate the significance of one’s legal status under international law: one’s rights and privileges in an armed conflict hinge directly upon their categorization. Evidently, when one is classified as an ‘unlawful combatant’ however, then they are made vulnerable to going through similar experiences as Paracha.
The Shift to ‘Enemy Combatants’ under Obama
Since the Bush regime it is important to note what progress has been made in the US regarding the legal status of ‘unlawful combatants.’ Despite the Obama administration’s shift towards using ‘enemy combatants’ instead of ‘unlawful or illegal combatants’ the nomenclature change has not been matched with significant policy change, as the working legal definition of ‘enemy combatant’ in the Obama era translated to ‘an individual who was part of or supporting Taliban or al-Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners… [including] any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.’[38] A Human Rights Watch expert summarized this change as: “In every way, it’s better than the old definition. It’s just not substantially different.”[39] By using ‘enemy combatants’ instead of ‘unlawful combatants’ on paper it looks like the US has reversed the Bush administration’s paradigm shift towards the three-category approach because the term ‘enemy combatants’ is a much more recognized term. However, it is not substantially different because while the Obama administration moved away from the legal black hole creating term, the actual treatment of these individuals has stayed virtually the same with the aid of new legislation to support a similar method of treatment under more appropriate terminology.
Figuratively, if the term ‘unlawful combatants’ was a pothole, the Obama administration fixed the first one and then created a circle of potholes around the fixed first one, creating an illusion of resolution. This figurative circle of potholes is exemplified in the Military Commissions Act of 2009. Throughout his eight years, Obama helped push the Military Commissions Act of 2009 to replace its 2006 version which had language issues in its ability to address the use of coerced evidence and admission of hearsay evidence.[40] On the other hand, the same Military Commission Act of 2009 barred detainees in Guantanamo Bay from calling upon the Geneva Conventions to set the parameters of their detention. Additionally, despite his campaign promises of closing Guantanamo Bay, Obama’s efforts were met with heavy opposition in Congress and ultimately unfruitful as he ended his tenure as President with forty detainees still in Guantanamo Bay.[41] This number did decrease over his time, as he pushed for various detainees to be moved to other facilities and also oversaw thirty seven detainees be granted habeas corpus relief.[42] The closure of Guantanamo Bay is significant in assessing the legal status of unlawful combatants because it essentially functioned as the number 1 facility for those put into that category.
A Return to Unlawful Combatants under Trump
Obama’s successor, Donald J. Trump, on the other hand, signed an executive order to reverse Obama administration efforts of closing the facility and publicly said, “Terrorists are not merely criminals. They are unlawful enemy combatants. And when captured overseas, they should be treated like the terrorists they are.”[43] This unfortunately signaled a significant step backwards in the direction of the Bush administration’s stance on dealing with unlawful combatants. As a result, Trump’s commitment to the existence of Guantanamo Bay directly led to continued detention without judicial review, one case of which was won by the ACLU as Trump’s administration illegally detained an American citizen without charging them with a crime for a year, during which time US forces denied their detainee legal representation thus necessitating the ACLU to file a habeas corpus lawsuit on their behalf.[44]
Conclusion
In short, the legal status of ‘unlawful combatants’ is complicated because contrary to the US approach, ‘unlawful combatants’ are simply not a category recognized under IHL. In an international armed conflict, one is either a combatant or civilian and if the laws of war are violated there are avenues to prosecute those violations through international and domestic courts. Therefore, individuals can still reasonably expect their rights as per the Geneva Conventions to apply when captured by an enemy party, even if they are a combatant that violates the rules of war or a civilian that directly participates in hostilities. They remain protected by Article 75 of Additional Protocol I and do not fall outside the remit of IHL. To acknowledge the validity in certain critiques of the two-category approach, the changes in warfare through increases in civilianization and urbanization have indeed presented challenges to the previous conceptualizations of combatants and civilians under IHL and there are meaningful discussions that should be had in regards to how best to approach such modern armed conflicts. These discussions could even challenge the previous conceptualizations of civilians and combatants. However, the United States’s approach to this issue is inappropriate because instead of using the critique of the two-category approach to create and/or reform IHL frameworks in a way that addresses their concerns, the US effectively saw a legal loophole that would make dealing with terrorists more convenient. In sum, this kind of approach towards an international armed conflict is dangerous because operating under a framework where a group of people have no rights renders them outside a regime of law under which they ought to be protected.
References
[1]“Principle of Distinction.” Principle of Distinction | How Does Law Protect in War? – Online Casebook, casebook.icrc.org/law/principle-distinction#vii_5.
[2] Ibid
[3] Article 48, International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3
[4] Article 4 International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), 12 August 1949, 75 UNTS 135
[5] Article 43, Additional Protocol I (referenced in supra n 3)
[6] As per the Principle of Distinction, Article 48 Additional Protocol I
[7] Article 43(2), Additional Protocol I and Article 87, Third Geneva Convention
[8] See generally “Combatants and POWs.” Combatants and POWs | How Does Law Protect in War? – Online Casebook, casebook.icrc.org/law/combatants-and-pows.
[9] Article 4, Third Geneva Convention
[10] See Articles 13, 14, 17, 18 and 71, Third Geneva Convention
[11] Article 75, Additional Protocol I allows for fundamental guarantees to all those not benefitting from more favourable treatment under the Conventions or the Protocol
[12] Article 48, Additional Protocol I
[13] Article 50, Additional Protocol I
[14] Article 4, International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287
[15] Articles 27, 33 and 40, Fourth Geneva Convention
[16] Article 5, Fourth Geneva Convention
[17] Melzer, Nils. Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law. ICRC, May 2009
[18] Ibid page 47
[19] Ibid page 51
[20] Ibid page 58
[21] Ibid page 70
[22] Mégret, Frédéric, From ‘Savages’ to ‘Unlawful Combatants’: A Postcolonial Look at International Humanitarian Law’s ‘Other’ (January 8, 2005). International Law And Its ‘others’, Anne Orford, ed., Cambridge, Cambridge University Press, 2006, pg. 25
[23] “Signatory States: Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II).” Treaties, States Parties, and Commentaries – Signatory States – Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977., ihl-databases.icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_viewStates=XPages_NORMStatesSign&xp_treatySelected=475.
[24] “Signatory States: Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I).” Treaties, States Parties, and Commentaries – Signatory States – Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977., ihl-databases.icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_viewStates=XPages_NORMStatesSign&xp_treatySelected=470.
[25] See State Parties, United States of America, available at: https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/vwTreatiesByCountrySelected.xsp?xp_countrySelected=US
[26] Mégret, Frédéric, From ‘Savages’ to ‘Unlawful Combatants’: A Postcolonial Look at International Humanitarian Law’s ‘Other’ (January 8, 2005). International Law And Its ‘others’, Anne Orford, ed., Cambridge, Cambridge University Press, 2006, pg. 24
[27] Ex Parte Quirin, (1942) 317 US 1
[28] Michael H. Hoffman, Terrorists Are Unlawful Belligerents, Not Unlawful Combatants: A Distinction with Implications for the Future of International Humanitarian Law, 34 Case W. Res. J. Int’l L. 227 (2002)
[29] Curtis A. Bradley, The United States, Israel, and Unlawful Combatants, 12 Green Bag 397-411 (2009)
[30] Ibid page 401
[31] Ibid
[32] Ibid
[33] Ibid page 402
[34] Ibid page 400
[35] “U.S. Nationals Detained as Unlawful Combatants.” The American Journal of International Law, vol. 97, no. 1, 2003, pp. 196–200. JSTOR,
[36] Ap. “US Approves Release of Oldest Guantanamo Prisoner – a 73-Year-Old Man from Pakistan.” DAWN.COM, 18 May 2021, www.dawn.com/news/1624317
[37] “Only Three of 116 Guantánamo Detainees Were Captured by US Forces.” The Guardian, Guardian News and Media, 25 Aug. 2015
[38] Weaver, Christopher. “Why Obama’s New Definition of Terrorists Is a Lot Like the Old One.” ProPublica
[39] Ibid
[40] Farley, Benjamin R. “The Fairy Tale America Likes to Tell Itself.” The Atlantic, Atlantic Media Company, 29 June 2021
[41] “Obama to Leave Office with More than 40 Detainees Still in Guantánamo Bay.” The Guardian, Guardian News and Media, 18 Jan. 2017
[42] “Enemy Combatants.” American Bar Association
[43] “Trump Signs Order to Keep Guantanamo Bay Prison Open.” BBC News, BBC, 31 Jan. 2018
[44] Hafetz, Jonathan. “U.S. Citizen, Detained Without Charge by Trump Administration for a Year, Is Finally Free.” American Civil Liberties Union, American Civil Liberties Union, 1 Nov. 2018
