Who is a Combatant?
Aug-10-07 11:27 am
Damage to the USS Cole
Over at National Security Advisors, Bobby Chesney raises a very important question: Do members of groups like al Qaeda ever qualify as combatants? His point of departure is an op ed written by General Wesley Clark and UCLA professor Kal Raustiala in the New York Times. They write:
Labeling terrorists as combatants also leads to this paradox: while the deliberate killing of civilians is never permitted in war, it is legal to target a military installation or asset. Thus the attack by Al Qaeda on the destroyer Cole in Yemen in 2000 would be allowed, as well as attacks on command and control centers like the Pentagon.Bobby then notes:
It seems to me that this particular argument is missing a critical point: attacks on military objectives are indeed permitted, but only when carried out by someone with the combatant's privilege. Insofar as al Qaeda members lack that privilege, their conduct in bombing the USS Cole remains an illegal act of mass murder rather than a lawful act of war regardless of whether the perpetrators are deemed to be subject to military detention in connection with armed conflict.This is a critical question.
Here is my take--
Under Article 4 (2) of the Geneva Convention Relative to the Treatment of Prisoners of War, POW status is granted to:
Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:It seems to me that if a non-state actor-- perhaps call it a non-state political group or a non-state politcal movement-- met the criteria under Article 4(2) it would be entitled to lawful combatant status. Indeed, its entitlement to POW status seems to confirm that conclusion. Of course, the Bush Administration used the criteria under Article 4 to reach the conclusion that members of al Qaeda were "unlawful enemy combatants"-- no uniforms, don't carry arms openly, don't follow the laws of war. Setting aside whether the phrase "unlawful enemy combatant" should every be used, it seems to me a reasonable conclusion that members of al Qaeda should not enjoy combatant status as long as the group doesn't comply with the requirements of Article 2. It is, however, important to note that some future al Qaeda or some other non-state political group could be compliant with Article 4 and would, in my view, be entitled to combatant status.
About the editor:
Commentary and analysis at the intersection of international law and politics.
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