Why Terrorists Are Not Combatants
Yesterday’s discussion of the question, “Is It ‘Terrorism’ if Soldiers are the Target?” demonstrated the complexity of fitting modern international terrorism, or perhaps 4th Generation Warfare period, into the rubric of the international law of war which evolved over centuries.
One of the side issues we got into in the comments section was whether terrorists such as the Fort Dix Six are “combatants” under the law. Loyola lawprof David Glazier argues passionately that they are not:
Many readers are likely familiar with the famous four criteria found in Article 4 of the Third Geneva Convention concerning eligibility for POW status; i.e., requirements to: (a) be commanded by a person responsible for his subordinates; (b) having a fixed distinctive sign recognizable at a distance; (c) carrying arms openly; (d) conducting their operations in accordance with the laws and customs of war.
What seems less well known, however, is that these criteria predate the Geneva Conventions/International Humanitarian Law by at least a half century. They are the qualifications for enjoying belligerent rights as a combatant first explicitly ennumerated in the 1874 Brussels Declaration and subsequently incorporated in the 1899 and 1907 Hague Regulations for Land Warfare.
The essential point is that the combatant enjoys all the "rights" of war. Modern commentators seem fixated on POW status. But the essential right of a combatant is authority to kill the enemy on sight and destroy his war material while enjoying complete immunity from domestic laws while doing so. In exchange for the this immunity, the combatant is himself subject to being shot on sight. While his surrender must be accepted if offered, an adversary need not offer the enemy this opportunity before attacking, unlike law enforcement personnel who must do so.
The issue of who qualifies as a “privileged belligerent” under the law has mostly focused on whether non-military prisoners held in these conflicts are protected by the Geneva Conventions and/or domestic criminal law. Glazier’s post, though, brings the focus back on the premise of the distinction: that organized militaries, particularly those under the color of legitimate state authority, have a special status in the law.
As they weren’t in military uniforms, couldn’t they be considered spies as well?
(1) What “fixed distinctive sign recognizable at a distance” do U.S. troops wear? At what distance? Recognizable to whom?
(2) If regular-army troops commit war crimes, are they no longer POW’s?
That said, I think the Dix Six (or Six Dix) were criminals, not POW’s.
What “fixed distinctive sign recognizable at a distance” do U.S. troops wear?
Uniforms, rank insignia, unit patches, an American flag patch, and a patch that says “U.S. Army” or the equivalent.
At what distance?
Presumably, the distance from which you’d recognize a man.
Recognizable to whom?
Pretty much anyone. An American soldier in full battle rattle would be instantly recognizable as a soldier by just about anyone who had ever seen a war movie, a soldier, or the news. As opposed to, say, a terrorist dressed to blend in with the crowd so as to surprise unsuspecting civilians.
Glazier is right that, by several standards, the Ft Dix Six (I like that) are not lawful combatants. But as he notes,
So, when does a criminal become a terrorist? Who gets to decide when someone has to be arrested and/or subdued and when they can be shot on sight? Cops? The military? DHS? Clearly, an insurgent in Iraq setting up an IED or mortar shot on US/Iraqi forces is a terrorist, but what about a guy mugging an off-duty soldier in Cleveland? Or someone stealing a TV out of family housing on a base?
The problem is that these treaties were written to deal with actions in a combat zone, not in a civilian city thousands of miles away.
Not sure I buy how readily identifiable a U.S. soldier is (as opposed to a merc?) at any distance. Regardless, I still think the “dressed as a soldier” bit is hard to swallow. What about militias?
To argue that the Taliban’s soldiers, for ex, weren’t “soldiers” under Geneva just seems too cute.
The conventions were evidently drafted by European powers used to dressing up their soldiers. The French still had those red pants back then, right?
Ah, actually took the time to read the linked Geneva article.
If you’re part of the armed forces of a Party to the conflict, you don’t have to be in uniform, etc. — those criteria are for “other militias,” etc. not part of said armed forces.
That would seem to handle my Taliban example. And I see that Glazier & I agree that terrorists are simply criminals.
I too once took time to read the Geneva Conventions. It was a laborous task as my mind does not naturally conform to legal “logic”.
The conventions do cover resistance fighters and others who may not wear regular uniforms because they don’t have any, however, they must bear their arms openly in plain view to indicate they are fighters and not innocent civilians. In my opinion, the Taliban who carried arms openly were clearly under Geneva POW coverage. The conventions also say (IIRC) that where doubt exists, a military court must determine, on a case by case basis, whether the combatant was within the spirit if not the letter of the law.
Most Al Qaeda operatives, on the other hand, are clearly outside Geneva Convention protection.
Never failing to side with terrorists
The conventions also say (IIRC) that where doubt exists, a military court must determine, on a case by case basis, whether the combatant was within the spirit if not the letter of the law.
Right, in cases of doubt, you’re presumed a POW until the court or tribunal finds otherwise. In the field, that could be a rather rough-and-ready procedure. Of course, prisoners at Gitmo have not been “in the field” for years.
“in cases of doubt, you’re presumed a POW until the court or tribunal finds otherwise. In the field, that could be a rather rough-and-ready procedure. Of course, prisoners at Gitmo have not been “in the field” for years.em>”
Which is why detainees held at Guantanamo Bay have all had their individual circumsances reviewed by a military tribunal.