By the Laws of War, They Aren't POWs
Sunday, March 3, 2002; Page B03
The U.S. government has yet to decide exactly how to handle al Qaeda and Taliban detainees being held in Afghanistan and at the Guantanamo Bay Naval Base in Cuba. The uncertainty has kept alive the legal debate over the status of the 500 or so detainees and whether they are being denied certain rights under international law, including the Geneva Conventions. The following is adapted from "Detention and Treatment of Combatants in the War on Terrorism," written by three Washington lawyers, Lee A. Casey, David B. Rivkin Jr. and Darin R. Bartram, and published last month by the Federalist Society for Law & Public Policy Studies.
President Bush's Military Order of Nov. 13, instructing the secretary of defense to establish one or more "military commissions" for the trial of captured al Qaeda members, has met with opposition from critics on both the left and the right. They contend that international law no longer supports the classification of groups such as al Qaeda or the Taliban as "unlawful belligerents" or "unlawful combatants," excluded from the rights of prisoners of war (POWs). In particular, many commentators claim that the Geneva Conventions of 1949 eliminated this distinction, and that all individuals captured during an armed conflict are entitled to POW status. This is simply untrue. Neither the Geneva Conventions, nor other international law developments over the past 50 years, changed significantly the international legal regime for dealing with unlawful combatants. Since both al Qaeda and the Taliban fall within the category of unlawful combatant, their members are not legally entitled to POW status.
I. Traditional Rules
Under the traditional laws of war, a fundamental distinction was drawn between lawful and unlawful belligerency. Individuals were considered to be lawful combatants -- accepting the burdens and entitled to the benefits of the laws of war (in particular, the right to be treated as prisoners of war upon defeat or capture) -- if they served in the armed forces, regular or militia, of a sovereign state. Four criteria, incorporated into Article I of the 1907 Annex to the Hague Convention (IV) Respecting the Laws and Customs of War on Land, were required to be satisfied before lawful belligerency was established:
Article 1. The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:
(1) To be commanded by a person responsible for his subordinates;
(2) To have a fixed distinctive emblem recognizable at a distance;
(3) To carry arms openly; and
(4) To conduct their operations in accordance with the laws and customs of war.
Individuals who took up arms, or joined an armed force that did not meet these criteria, were considered to be unlawful belligerents and a threat to every civilized state. Individuals falling into this category -- including spies, saboteurs and "guerrillas" -- could be summarily punished, up to and including the death penalty.
These rules have been applied consistently by the United States and other nations. During World War II, the last conflict involving all of the world's great powers, both the Axis and Allied powers denied POW status to unlawful combatants. This was especially true of the Axis governments, which savagely repressed resistance or "partisan" movements. After the war, the tribunals established by the Allies prosecuted Axis officers and soldiers for mistreating prisoners of war. But these same tribunals fully accepted the rule that unlawful combatants were not entitled to the POW status, and that they could be punished for their unlawful belligerency.
As a U.S. military tribunal at Nuremberg, in trying to come to terms with the role of resistance forces during World War II, observed in 1947:
GUERRILLA WARFARE IS SAID to exist where, after the capitulation of the main part of the armed forces, the surrender of the government and the occupation of its territory, the remnant of the defeated army or the inhabitants themselves continue hostilities by harassing the enemy with unorganized forces ordinarily not strong enough to meet the enemy in pitched battle. They are placed much in the same position as a spy. . . . Just as the spy may act lawfully for his country and at the same time be a war criminal to the enemy, so guerrillas may render great service to their country and, in the event of success, become heroes even, still they remain war criminals in the eyes of the enemy and may be treated as such. In no other way can an army guard and protect itself from the gadfly tactics of such armed resistance. And, on the other hand, members of such resistance forces must accept the increased risks involved in this mode of fighting.
II. Modifications
In the aftermath of World War II, the Geneva Conventions enhanced the legal protections available to irregular forces, largely by weakening the requirement that they be affiliated with a recognized belligerent government. It was fully recognized at the time, however, that irregular forces who failed to meet the minimum four criteria for lawful belligerency were excluded from the Conventions' protections. As the International Committee of the Red Cross (ICRC) noted in its commentary on the treaty, "there was unanimous agreement about the necessity for partisans to fulfill the conditions laid down in Article 1 of the Hague Regulations . . . in order for them to qualify as 'prisoners of war.' "
There were additional efforts in 1977, undertaken largely by developing nations with a sympathy for "national liberation movements," to further protect irregular combatants. These efforts had only modest success. The United States has never ratified the resulting document, known as Protocol I. In fact, it was specifically repudiated by President Reagan -- because he thought it blurred the distinction between lawful and unlawful combatants -- in 1987.
Still, the category of unlawful combatant was not eliminated. This was fully acknowledged by the ICRC commentary to Protocol I. The ICRC noted that "anyone who participates directly in hostilities without being subordinate to an organized movement under a party to the conflict, and enforcing compliance with these rules, is a civilian who can be punished for the sole fact that he has taken up arms" and that "anyone who takes up arms without being able to claim this status will be left to be dealt with by the enemy and its military tribunals in the event that he is captured."
III: Al Qaeda and the Taliban
There is little doubt that the members of al Qaeda are unlawful combatants under both the Hague Regulations and Geneva Conventions, as well as customary international law. Although al Qaeda has undertaken military-style attacks against the United States and others, its fighters do not operate under a "responsible" command structure, wear uniforms, carry arms openly or conduct their operations in accordance with the laws and customs of war. Failure to meet any one of these requirements would be sufficient to make al Qaeda's members into unlawful combatants. They meet none of them.
Whether the Taliban meets the requirements is a more complicated question. The Taliban began as a guerrilla movement well after the 1989 Soviet withdrawal from Afghanistan. By late 1994, the group had gained control of the city of Kandahar in southern Afghanistan, and it captured the capital, Kabul, in 1996. Although the Taliban was eventually recognized as the country's legitimate government by a handful of states (including Pakistan and Saudi Arabia), there is a serious question whether its forces ever achieved the status of lawful combatants as defined by the 1907 and the 1949 conventions.
First, they do not appear to have a regular and recognizable command structure, capable of imposing a military-style discipline. As journalist Ahmed Rashid reported in his book, "The Taliban": "The military structure of the Taliban is shrouded in even greater secrecy. The head of the armed forces is Mullah Omar although there is no actual definition of his position or his role. Under Omar there is a chief of general staff and then chiefs of staff for the army and air force. There are at least four army divisions and an armored division based in Kabul. However, there is no clear military structure with a hierarchy of officers and commanders, while unit commanders are constantly being shifted around."
Military-style discipline is the gravamen of this first requirement. A "responsible" command structure must be capable of ensuring that the entire military organization complies with the laws of war and that any malfeasance must be addressed and punished. Given the importance of command responsibility, a command structure that is vague -- thereby insulating its members from responsibility for the actions of subordinates -- does not meet this requirement. This appears to be the case with the Taliban, whose military forces were run by a constantly changing cast of commanders, with unclear lines of civilian and military authority above them.
Second, it also is doubtful that Taliban forces wore an emblem or article of clothing that clearly identified them as combatants or that they carried their arms openly. It could be argued that it might be problematic to fulfill the requirement about weapons in a society where men habitually carry firearms about their persons. It remains a requirement nonetheless.
Most importantly, the Taliban did not carry out military operations in accordance with the laws of war. In fact, the Taliban openly rejected "Western" international law. Mullah Omar has been quoted as saying: "[w]e do not accept something which somebody imposes on us under the name of human rights which is contradictory to the holy Koranic law." His deeds match his pronouncement.
How a country's armed forces conduct themselves is a critical component in determining lawful belligerency. In particular, as noted by the ICRC, partisans are "required to respect the Geneva Conventions to the fullest extent possible":
IN ALL THEIR OPERATIONS, they must be guided by the moral criteria which, in the absence of written provisions, must direct the conscience of man; in launching attacks, they must not cause violence and suffering disproportionate to the military result which they may reasonably hope to achieve. They may not attack civilians or disarmed persons and must, in all their operations, respect the principles of honour and loyalty as they expect their enemies to do.
In his new book, "The Rise of the Taliban in Afghanistan," Neamatollah Nojumi describes how the Taliban and its supporters waged war:
THESE NON-AFGHAN FIGHTERS, along with the Taliban army, have not only broken the traditional norms of Afghan civil societies, they have also committed massive crimes against humanity by beheading and killing prisoners of war (POWs) and massacring thousands of civilians in different parts of the country. In 1998 to 1999, the International Red Cross (ICRC) reported that the Taliban and their non-Afghan army killed thousands of civilians in Bamyan and set fire to about 8,000 houses and shops.
Similarly, according to reports by Amnesty International, Taliban fighters often treated women "as spoils of war. Many women were raped by armed guards during the period 1992-1995. Rape appeared to be condoned by leaders as a method of intimidating vanquished populations and of rewarding soldiers."
Killing prisonersofwar, massacring civilians, the wanton destruction of civilian property and treating women as "the spoils of war" violate both the customary laws of war and treaty-based norms, including the Geneva Conventions of 1949 to which Afghanistan is, itself, a party. When these kinds of atrocities are committed by soldiers, they are considered war crimes and punished on an individual basis. When it is the policy of the group in question to undertake such activities, all of the group's members may be considered unlawful belligerents, subject to summary disposition in military courts and excluded from the benefits of POW status.
IV: The Fate of the Taliban and al Qaeda
The administration has yet to prosecute (by military commission or any other body) any detainee from Afghanistan, and it does not appear likely to do so in the near future. Under international law, it is entirely appropriate to hold both unlawful combatants and POWs until the armed conflict has ended. This was, in fact, a practice often followed during World War II, where some individuals were tried and punished during the war, but others were held until hostilities had ended.
Although it may be difficult to determine the precise point at which the "war on terrorism" concludes, once the al Qaeda network -- like the Taliban -- is destroyed, the United States will have to determine whether to try the detainees or repatriate them -- either to Afghanistan or to their countries of origin. They are not entitled to the rights and privileges of POWs, but customary international law does require that even unlawful combatants be given a judicial process before being "punished." Otherwise, their continued detention becomes, at some point, penal in nature. For the time being, however, the United States is fully entitled to hold the captured Taliban and al Qaeda members as unlawful combatants, without granting them POW status.
V: Conclusion
At the dawn of the 21st century, the civilized world is once again seriously menaced by unlawful belligerency. Judging from the tragic events of Sept. 11 and al Qaeda's subsequent pronouncements, it intends to continue a policy of purposefully targeting civilian populations, and does not feel bound in the slightest bythe accepted laws of war. Strict enforcement of the prevailing international law norms, which provide that unlawful combatants are not entitled to the rights of POWs and can be tried by military tribunals, is a key aspect of the campaign against terrorism.
Indeed, to erode the distinction between lawful and unlawful combatants, which is to central to the laws of war, would undermine the entire effort of subjecting warfare to legal restraints and rules. This enterprise is centuries old, and it would be ironic indeed if the 21st century witnessed the destruction of the achievements that have sought to limit, to the maximum extent possible, the destruction and horror of war.
