Terrorism combatant brief

In June 2007, the federal appeals court in Richmond, VA denied the existence of the legal category "unlawful enemy combatant"  (UEC).This surprise decision came about during the case of Al-Marri v. Wright. Several Washington lawyers authored a recent opinion piece in the Washington Post and believe that if the decision is widely adopted, it will "undermine a fundamental purpose of the laws of war: avoiding impunity for war crimes." [1] What the authors failed to realize is that giving any title to Al-Marri will grant him certain rights guaranteed under international law.

The laws of war are very complex and are contained in extensive legal documents and conventions. The present documentation of the laws of war are based on customary international law that has been around for thousands of years. Only in the past 200-300 years have the laws been so extensively written down. The main purpose of international laws of war is to punish the evil and protect the innocent. Maintaining basic human rights and protecting civilians are the basic tenants of all the laws regarding warfare.

The lawyers who authored the above opinion piece believe that the decision to deny the existence of UEC will open the possibility that "no body of law [will] apply to conflicts between non-state actors." This however, is not the case. Although war is seldom declared, de facto wars still occur and the belligerents are often non-states. It does not matter what type of entity is waging a war, the groups on both sides are termed belligerents.

According to the article, the court concluded that because al-Qaeda wasn’t a state, Marri had to be treated as a civilian criminal defendant. As mentioned previously, wars are often waged among non-state actors and it must be understood however, that recognition of belligerency does not necessarily mean recognition of statehood. For example, take a look at the Civil War.

During the U.S. Civil War, there were two sides to the conflict: The Federal States of the North and the Confederate States of the South. President Lincoln had a German professor, Francis Lieber, draft General Orders No. 100 which embodied international customary law. In accordance with customary international law of the time, Lieber’s article 152 states that "when humanity induced the adoption of the rules of regular war towards rebels, whether the adoption is partial or entire, it does in no way whatever imply a partial or complete acknowledgment of their government … as an independent or sovereign power." This allowed captured confederate soldiers to be treated as POWs without acknowledging the legitimacy of the Confederate government. This is exactly how the United States can fight a war against al-Qaeda and other non-state actors around the world.

Giving terrorists titles such as "unlawful enemy combatant," "detainee," "insurgent," etc. is a waste of time and taxpayer dollars. The authors believed that the ruling by the court would give al-Qaeda impunity for war crimes. What they fail to take into account is that there is only a gradual shift to consider crimes against civilians as the most serious of war crimes. Currently, the spotlight of war crimes concerns the illegitimate violations of the rights and treatment of POWs.

The main effect of being a lawful combatant is entitlement to prisoner of war (POW) status. According to Geneva Convention III, in order to secure POW status, a combatant must: (a) be a soldier within a military hierarchy; (b) wear a distinctive sign or emblem to denote the side to which he is a combatant; (c) carry arms openly; and (d) conduct operations in accordance with the laws of war. If a combatant does not adhere to these four conditions, they are guaranteed no rights under the law.

What is the usual outcome of a person found guilty of war crimes? Death? Well, under the current laws of war, that is exactly what can befall a belligerent or combatant who doesn’t fall into legal POW status. Any U.S. soldier who comes under attack from any non-state entity can lawfully execute any member of the group who surrenders as long as they do not secure the four qualifications of POW status mentioned above. This execution can be carried out lawfully under the current provisions of the laws of war. If Rivkin and Casey are truly worried about al-Qaeda’s impunity for war crimes, they should take a look at current legal proceedings dealing with suspected terrorists.

Quite often, in the rush to prevent an attack, authorities will move in and seize a suspected operative and hold him without trial for an indefinite period of time. Due to the fact that the suspect is apprehended before the attack and most often earlier in the planning stages, there is usually not that much hard evidence for the state to find him guilty of a terrorism charge. Instead, the person is charged with other criminal charges and the median sentence for those convicted of "international terrorism" crimes is only 14 days.

With the lack of evidence that is often involved in terrorism cases, the state’s ability to find individuals guilty of terrorism charges is almost impossible. Therefore, a more hard-lined approach should be taken to finding terrorists and taking them off the streets. Should the United States spend millions of taxpayer dollars to detain a suspected terrorist in Guantanamo or pay for a trial that will most likely end with a 14-day sentence? Or should the government turn a blind eye to the "shoot on site" policy mentioned earlier?  

Although no responsible country would have a "shoot on site" policy regarding terrorists and insurgents, the United States must take a more active approach to make sure terrorists don’t make it back onto the streets to continue their planned attacks. The U.S. should take a look at how the French dealt with Algerian and Corsican terrorists during the 1980s and 1990s. Quite often, a rather high number of individuals who were not wanted for interrogation were killed for "resisting arrest."