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.