CHAPTER 1 INTRODUCTION
3.6 Civilian direct participation in hostilities: the ‘unlawful combatant’, and the forfeiture of civilian status
i. Unlawful combatant: legal term or misleading descriptor?
The term ‘unlawful combatant’ was first coined in the 1942 US Supreme Court decision in Ex Parte Quirin57 to describe ‘a combatant who conducted his belligerence in an unlawful manner’58 and ‘had not fulfilled certain conditions which are indispensible to the acquisition of qualification for the status of POW’59. When the ICRC convened a diplomatic conference to draft and adopt
51 1949 Geneva Conventions, common article 3.
52 Hans-Peter Gasser (1995) ‘Protection of the Civilian Population’ in Dieter Fleck (ed) The Handbook of Humanitarian Law in Armed Conflict Oxford University Press: Oxford at 210.
53 Solis suggests that ‘carrying heavy arms on one’s person is equally an invitation for attack… yet, civilians may possess light weapons for hunting or self defence, without losing their protection from attack, as long as these weapons are not carried or used in questionable circumstances’ (Gary Solis (2010) The Law of Armed Conflict: International Humanitarian Law in War Cambridge University Press: New York at 208).
54 Ibid; Eric T Jensen (2011) ‘Direct Participation in Hostilities’ in William C Banks (ed) ‘New Battlefields Old Laws: Critical Debates on Asymmetric Warfare Columbia’ (Columbia University Press: New York) (ebook) at 2028-36.
55 Rogers ‘Unequal Combat and the Law of War’ at 15; Roberts ‘The Civilian in Modern War’
at 39.
56 Blank ‘Updating the Commander’s Toolbox: New Tools for Operationalising the Law of Armed Conflict’ at 65.
57 In 1942 a group of German ‘saboteurs, apparently belonging to the German Marine Infantry’ arrived by submarine at the American West Coast, and were captured while in civilian dress (Rogers ‘Unequal Combat and the Law of War’ at 25). In an application for habeas corpus the US Supreme Court ruled unanimously that:
‘the laws of war distinguish between combatants and civilians, and between lawful combatants and unlawful ones. Lawful combatants are subject to capture and detention as POW’s by the opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful’ (Ex Parte Quirin 317 U.S. 1 30-31 (1942); Shlomy Zachary ‘Between the Geneva Conventions: Where Does the Unlawful Combatant Belong?’ (2005) 38 Israel Law Review 378 at 385).
58 Zachary ‘Between the Geneva Conventions: Where does the Unlawful Combatant Belong?’
at 415.
59 In the Mohammed Ali case (317 U.S. 1 (1942) 59), soldiers who conducted belligerent acts while wearing civilian clothes, were denied POW status because of their breach of the laws of war, since ‘such unprivileged belligerents, though not condemned by international law, are not
the four 1949 Geneva Conventions, the term ‘unlawful combatant’ was not mentioned at all60.
Only two years after the Geneva Conventions were drafted, Richard Baxter already recognised the existence of certain types of fighters ‘who do not easily fit into the categories of the Geneva Conventions’61. Once again the term unlawful combatant came to the fore, however what differed from
references made in Ex Parte Quirin, was that now the term was being used as
‘shorthand for persons - civilians - who have directly participated in hostilities in an international armed conflict without being members of the armed forces (as defined by international humanitarian law - IHL) and who have fallen into enemy hands’62. They are viewed as a combatant of sorts ‘in the sense that they can be lawfully targeted by the enemy’63 the moment they elect to participate directly in hostilities, and yet ‘unlawful’ in that they cannot ‘claim the privileges appertaining to lawful combatancy’64, because they lack the requisite authority to participate directly in hostilities.
Legally speaking the term ‘unlawful combatant’ is completely novel65 in that it has ‘remained unused in the legal terminology of armed conflict’ since the Quirin judgment66’, and is ‘not acknowledged or otherwise mentioned in the Laws of War’, the Geneva Conventions or in any other IHL treaty67 or
protected by it’ (Idem at 386). Zachary correctly points out that this determination of them being unprivileged belligerents ‘does not create a new status, but only links the lawfulness of belligerence with the entitlement of POW status’ (Ibid). Yoram Dinstein (2007) ‘The System of Status Groups in International Humanitarian Law’ in Wolff Heintschel von Heinegg and Volker Epping (eds.) International Humanitarian Law Facing New Challenges Springer: Berlin at 154.
Similarly in the Hostages Case members of resistance movements not having lawful combatant status were referred to as “unlawful belligerents” ((Nuremberg Trials of War Criminals 1950 (available at http://www.loc.gov/rr/frd/Military_Law/pdf/Law-Reports_Vol-8.pdf (accessed 21 September 2012)).
60 Zachary argues that ‘the term was probably ignored intentionally’ (Zachary ‘Between the Geneva Conventions: Where does the Unlawful Combatant Belong?’ at 386). Some criticise the term for being an oxymoron, since ‘if a combatant is by definition someone with lawful authorisation to participate in hostilities, then anyone acting without authorisation cannot enjoy the label combatant at all’ (Solis The Law of Armed Conflict: International Humanitarian Law in War at 226).
61 Baxter defines these ‘unprivileged belligerents’ as ‘persons who are not entitled to treatment either as peaceful civilians or as POWs, by reason of the fact that they have engaged in hostile conduct without meeting the qualifications established by article 4 of the Geneva POW Convention of 1949’ (Richard Baxter ‘So-Called Unprivileged Belligerency:
Spies, Guerillas and Saboteurs’ (1951) 28 British Yearbook of International Law 323);
Roberts ‘The Civilian in Modern War’ at 40.
62 ICRC 'International Humanitarian Law and the Challenges of Contemporary Armed Conflicts' (2007) 867 International Review of the Red Cross 719 at 727; Solis The Law of Armed Conflict: International Humanitarian Law in War at 208 and 238; Zachary ‘Between the Geneva Conventions: Where does the Unlawful Combatant Belong?’ at 385.
63 Dinstein The Conduct of Hostilities Under the Law of International Armed Conflict at 36.
64 Idem at 29; Nathaniel Berman ‘Privileging Combat? Contemporary Conflict and the Legal Construction of War’ (2004) 43 Columbia Journal of Transnational Law 1 at 7.
65 ICRC 'International Humanitarian Law and the Challenges of Contemporary Armed Conflicts' at 727.
66 Zachary ‘Between the Geneva Conventions: Where does the Unlawful Combatant Belong?’
at 387.
67 Luisa Vierucci ‘Prisoners of War or Protected Persons Qua Unlawful Combatants? The Judicial Safeguards to which Guantánamo Bay Detainees are Entitled’ (2003) Journal of International Criminal Justice 284 at 295.
customary IHL68. ‘Initially the International Committee for the Red Cross (ICRC) maintained that there was no such category, but they have since admitted that the term “unlawful combatant” has been used over the last century in legal literature, military manuals69 and case law’70. In fact, what started out as a descriptor in Ex Parte Quirin soon took on the status of a
‘legal’ phrase71’ and the initial term ‘unlawful combatant’72 is now mentioned in some military manuals alongside terms like ‘unprivileged belligerents’73, and most recently ‘unlawful’ enemy combatant’74.
Dinstein suggests that these unlawful combatants ‘inhabit the grey area in between the lands of the combatant and the civilian’75. Many academics question ‘whether such a third status (unlawful combatants) really exists in international law’76. The problem with sub-dividing ‘combatants’ into lawful and unlawful sub-categories is that IHL operates on the fundamental principle that everyone in the theatre of armed conflict enjoys primary IHL status as either an authorised combatant77 (and is protected by GC III) or a civilian (and is protected by GC IV78), and there is no status in-between. Consequently, if a
68 Zachary ‘Between the Geneva Conventions: Where does the Unlawful Combatant Belong?’
at 385.
69 For example the United Kingdom Ministry of Defence (2004) The Manual of the Law of Armed Conflict Oxford at 279 para 11.4.
70 Michael Cowling and Shannon Bosch ‘Combatant Status at Guantanamo Bay - International Humanitarian Law Detained Incommunicado’ (2009) 42:1 Comparative and International Law Quarterly of South Africa 1 at 18; Adam Roberts ‘Appendix 9:
Supplementary Memorandum 26’ (2002) available at http://www.parliament.the-stationery-
office.co.uk/pa/cm200203/cmselect/cmdfence/93/93ap10.htm (accessed 3 November 2012).
71 Zachary ‘Between the Geneva Conventions: Where does the Unlawful Combatant Belong?’
at 385.
72 Kenneth Watkin ‘Warriors Without Rights? Combatants, Unprivileged Belligerents, and the Struggle over Legitimacy’ (2005) Program on Humanitarian Policy and Conflict Research, Harvard University Occasional Paper Series (Winter) No 2 at 6; Robert Goldman and Brian Tittemore ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ (2002) ASIL Task Force Paper available at www.asil.org/taskforce/goldman.pdf (accessed 21 February 2012) at 4;
Knut Ipsen (1995) ‘Combatants and Non-combatants’ in Dieter Fleck (ed) The Handbook of Humanitarian Law in Armed Conflict Oxford University Press: Oxford at 68.
73 Baxter ‘So-Called Unprivileged Belligerency: Spies, Guerillas and Saboteurs’ at 328;
Watkin ‘Warriors Without Rights? Combatants, Unprivileged Belligerents, and the Struggle over Legitimacy’ at 6; Berman ‘Privileging Combat? Contemporary Conflict and the Legal Construction of War’ at 7.
74 Hamdi v Donald H Rumsfeld, 124 S. Ct. 2633, 2640 (2004) where the term ‘enemy combatant’ was used in reference to captured Taliban and Al-qaeda fighters.
75 Dinstein The Conduct of Hostilities Under the Law of International Armed Conflict at 36.
76 Zachary ‘Between the Geneva Conventions: Where does the Unlawful Combatant Belong?’
at 379.
77 As Watkin explains, ‘the inclusion of unlawful combatants within the category of combatants appears prima facie to be inconsistent with the historical linkage between legitimacy and combatant status’ (Watkin ‘Warriors Without Rights? Combatants, Unprivileged Belligerents, and the Struggle over Legitimacy’ at 11).
78 ‘He might be a protected person under the Geneva Civilian Convention but, if he is a national of a State that is not a party to the armed conflict, he might fall outside the ambit of that convention’ (Rogers ‘Unequal Combat and the Law of War’ at 24). The following
‘civilians’ are precluded from relying on GC IV in times of international armed conflict:
‘1. a national of the belligerent party in whose hands he is;
2. a national of any other State not a contracting party to the convention’ (although, as the Geneva Conventions have been universally ratified, this exemption is no longer
participant in hostilities does not fulfill the conditions for combatant status (ie membership in an armed group), then they necessarily remain civilians (as they were at their birth)79.
Those opposed to the introduction of a third IHL status argue that
‘unlawful combatant… has a exclusively descriptive character… and does not corroborate the existence of a third category of persons’80. The Israeli High Court of Justice in Public Committee against Torture in Israel ('PCATI') v Government of Israel concluded, after analysing the literature, treaty and custom, that there was insufficient evidence to support a conclusion that the term ‘unlawful combatant’ constituted a third status under IHL81. There is also growing concern that such a move would re-introduce the ‘concept of “quasi- combatant” which was used to justify direct attacks on civilian factory workers during World War II’82. Those who reject the introduction of this third category argue that it is legally unacceptable to create a further category for the sole reason of reducing ‘the individual protection below the minimum standard of human rights’83.
These academics who reject a third IHL status, maintain that ‘unlawful combatants/unprivileged belligerents are not a third battlefield category but a subcategory of civilian’84. The ICRC maintains that ‘these individuals still fall within the protections of GC IV, the convention protecting civilians’85. This viewpoint has been ‘endorsed by the International Criminal Tribunal for the former Yugoslavia when it held ‘there is no gap between the Third and Fourth Geneva Convention and that if an individual is not entitled to protections of the Third Convention... he or she necessarily falls within the ambit of Convention
relevant in practice);
‘3. a national of a co-belligerent State maintaining normal diplomatic relations with the belligerent in question or;
4. a national of a neutral country maintaining normal diplomatic representation in the State in whose hands they are’.
(Dinstein The Conduct of Hostilities Under the Law of International Armed Conflict at 47;
Rikke Ishøy (2008) Handbook on the Practical Use of International Humanitarian Law (revised edition) Danish Red Cross: København at 121).
79 Ibid.
80 Solis The Law of Armed Conflict: International Humanitarian Law in War at 208.
81 (2006) HCJ 769/02 available in English from http://elyoni.court.gov.il/eng/home/index.html (accessed 23 September 2008) at para 28.
82 Watkin ‘Warriors Without Rights? Combatants, Unprivileged Belligerents, and the Struggle over Legitimacy’ at 10.
83 Knut Ipsen (2008) ‘Combatants and Non-combatants’ in Dieter Fleck (ed) The Handbook of Humanitarian Law in Armed Conflict Oxford University Press: Oxford at 83.
84 Solis The Law of Armed Conflict: International Humanitarian Law in War at 207; Watkin
‘Warriors Without Rights? Combatants, Unprivileged Belligerents, and the Struggle over Legitimacy’ 74-75.
85 Cowling and Bosch ‘Combatant Status at Guantanamo Bay – International Humanitarian Law Detained Incommunicado’ at 26; Johannes Van Aggelen ‘A Response to John C. Yoo:
“The Status of Soldiers and Terrorists under the Geneva Conventions”’ (2005) Chinese Journal of International Law June 167 at 174.
IV.’86 Moreover in the Al-Marri87 case the court simply ‘did not recognise the legal category of enemy combatant’88.
Jensen suggests that we call these ‘civilians who are not lawful combatants but still involve themselves in hostilities… direct participants’89. Admittedly, ‘civilians taking a direct part in hostilities lose civilian immunity from attack, but not the “civilian” status itself’90. But ‘when an unlawful
combatant has ceased taking a direct part in hostilities, even temporarily, he regains the status of an ordinary civilian, a full-fledged ‘protected person’ who is not a legitimate military target’91.
We need to appreciate therefore that the term “civilian” might be confusing because it includes within its ranks, protected persons and those who by their actions have made themselves legitimate targets92. As Blank explains, ‘even though they are fighting, they retain their civilian status in the traditional framework because they do not fit the definition of combatant’93. A civilian’s unauthorised participation in hostilities prior to capture does ‘not deprive him or her of civilian status, but may lead to some, limited, waiving of rights and privileges’94.
ii. Forfeiture of civilian status
Linked to the somewhat misconstrued notion that a civilian who participates in hostilities can become an unlawful combatant, has emerged the notion that one can forfeit one’s primary civilian status. So for example some academics argue that ‘a person who engages in military raids by night, while purporting to be an innocent civilian by day’ forfeits his civilian status’95.
The notion that an individual can forfeit their IHL status crept into the language of AP I in the provisions dealing with POW status. However, on closer inspection it becomes apparent that the notion that one can forfeit one’s primary status is at odds with IHL - a combatant might forfeit his secondary POW status (for failing to observe the principle of distinction), but neither combatants nor civilians can ever do anything to forfeit their primary status per se. Their actions (by participating directly in hostilities) may affect
86 Prosecutor v Delalic et al (Celebici case) ICTY Judgement (16 November 1998) IT-96-21-T available at http://www.icty.org/x/cases/mucic/tjug/en/981116_judg_en.pdf (accessed 18 September 2012) at para 271; Cowling and Bosch ‘Combatant Status at Guantanamo Bay – International Humanitarian Law Detained Incommunicado’ at 26.
87 487 F.3d at 184–85.
88 Cowling and Bosch ‘Combatant Status at Guantanamo Bay – International Humanitarian Law Detained Incommunicado’ at 26; Gregory Shill ‘Enemy Combatants and a Challenge to the Separation of War Powers in Al-Marri v Wright, 487 F.3d 160 (4th Cir. 2007)’ (2008) 31:1 Harvard Journal of Law and Public Policy at 2.
89 Jensen ‘Direct Participation in Hostilities’ at 1969-78.
90 Dinstein The Conduct of Hostilities Under the Law of International Armed Conflict at 27.
91 Zachary ‘Between the Geneva Conventions: Where does the Unlawful Combatant Belong’
at 393.
92 Blank ‘Updating the Commander’s Toolbox: New Tools for Operationalising the Law of Armed Conflict’ at 65.
93 Ibid.
94 Ishøy Handbook on the Practical Use of International Humanitarian Law at 121; Solis The Law of Armed Conflict: International Humanitarian Law in War at 207; Crane and Reisner
‘Jousting at Windmills’ at 1621-28.
95 Dinstein The Conduct of Hostilities Under the Law of International Armed Conflict at 29.
the extent to which they enjoy the privileges associated with their primary status (ie by exposing them to direct targeting for so long as they participate in hostilities), but that alone does not change the fact that their primary status is civilian. Failing to act like a civilian will not make one a combatant96, likewise failing to observe the principle of distinction will not render a combatant a civilian (rather, they will remain a combatant but will forfeit their POW privileges).
3.7 The consequences of unauthorised direct participation in hostilities