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.

FILED UNDER: Law and the Courts, Military Affairs, Terrorism,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Soccer Dad says:

    If … you must 06/01/2007 If you haven’t read Why terrorists are not combatants at Outside the Beltway; you must. The context was the thwarted attack on Fort Dix, but it also applies to Israel where soldiers are also targeted by terrorists. If you haven’t read Couric vs. Williams vs. Gibson

  2. Archives December 2006 August 2006 June 2006 May 2006 April 2006 March 2006 February 2006 [IMG Outside The Beltway | OTB] Headline of the Day Tim Blair Accidental Prime Minister Why Terrorists Are Not Combatants Bill Richardson Job Interview Ads Clinton Edge Over Obama Widens Star Trek-Style Replicators Coming Soon? If Inouye Leaves, Stevens Will Follow Presidential Campaigns, Web 2.0, and Online Censorship

  3. Rodney Dill says:

    As they weren’t in military uniforms, couldn’t they be considered spies as well?

  4. Anderson says:

    (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.

  5. James Joyner says:

    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.

  6. legion says:

    Glazier is right that, by several standards, the Ft Dix Six (I like that) are not lawful combatants. But as he notes,

    …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.

    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.

  7. Anderson says:

    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?

  8. Anderson says:

    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.

  9. William d'Inger says:

    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.

  10. Bandit says:

    1) What “fixed distinctive sign recognizable at a distance” do U.S. troops wear?

    Never failing to side with terrorists

  11. Anderson says:

    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.

  12. […] re: “Why Terrorists Are Not Combatants” Read this piece by James Joyner at Outside The Beltway.Money quote(s):”(O)rganized militaries, particularly those under the color of legitimate state authority, have a special status in the law.” […]

  13. 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.