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«Ó Springer 2007 Law and Philosophy (2007) 26: 31–65 DOI 10.1007/s10982-005-5917-2 TAMAR MEISELS COMBATANTS – LAWFUL AND UNLAWFUL (Accepted 27 ...»

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Ó Springer 2007

Law and Philosophy (2007) 26: 31–65

DOI 10.1007/s10982-005-5917-2



(Accepted 27 December 2005)

The September 11 attacks led many Americans to believe that

Al-Qaeda had plunged the U.S. into a new type of war, already

familiar to some of the country’s closest allies. Subsequent

debates over modern terrorism often involve a sort of lamentation for the passing of old-fashioned wars.1 Paul Gilbert’s New Terror, New Wars suggests that at least when it came to old wars we knew when they were taking place, who were fighting them, and what they were fighting about. Most significantly is that in the past, as Gilbert reminds us, a state of war existed between sovereign states, whereas ‘new wars’ exist ‘between a state, or a combination of states, on one side, and non-state actors on the other’.2 As George Fletcher puts it, we are in ‘a world beset with nontraditional threats from agents we call ‘‘terrorists’’’.3 This paper focuses on the new type of agents involved in contemporary armed conflicts and their rights. Following Michael Walzer, Terrorism is understood here as a particular form of political violence: the intentional random murder of defenseless non-combatants, many of whom are innocent even by the assailants’ own standards (e.g. infants, children, the elderly and infirm, and foreign nationals), with the intent of spreading fear of mortal danger amidst a civilian population as George Fletcher, Romantics at War – Glory and Guilt in the Age of Terrorism (Princeton, New Jersey: Princeton University Press, 2003). Paul Gilbert, New Terror, New Wars (Edinburgh: Edinburgh University Press, 2003).

Gilbert, 3, pp. 7–8.

Fletcher, 6.

32 T. MEISELS a strategy designed to advance political ends.4 The targeting of random civilians, Walzer argued, sets terrorism apart from guerrilla warfare, which (as a rule) confronts armies, and political assassination, which targets particular officials.5 In what follows, for the sake of argument, I will avoid the legal and scholastic controversy over the definition of the term ‘terrorism’ as distinct from other forms of irregular warfare such as guerrilla (or freedom) fighters, assassins, and the like. The argument advanced in this paper concerns irregular warfare in general, and it is therefore unnecessary here to delve into the various scholarly arguments over the precise legal or moral definition of the term ‘‘terrorism’’ properly so called. The thesis defended here is that irregular belligerents whether ‘terrorists’ or otherwise, are ‘unlawful combatants’ and as such are ineligible either for the immunities guaranteed to soldiers by international conventions ofwar or for the protections of the criminal justice system. This point about lawless combat in the course of battle is stressed, first as a point of law, but second, and more significantly, as a moral position. Section I addresses the historical development of the lawful rules of combat and argues that the distinctions that underlie the laws of war serve Walzer, Just and Unjust Wars (New York: Basic Books, 1977), 197, 203.

This definition of terrorism is admittedly controversial. Jeremy Waldron, ‘Terrorism and the uses of Terror’, The Journal of Ethics, 2004, Vol. 8, 5–35, offers many different legal as well as academic definitions of ‘‘terrorism’’.

C.A.J. Coady, ‘Defining Terrorism’, in Terrorism – The Philosophical Issues (Igor Primoratz ed.), Palgrave Macmillan (New York and London, 2004), 3–14, p. 4, suggests there are over 100 modern definitions of terrorism.

George Fletcher, ‘the Problem of Defining Terrorism’, mentions dozens of such definitions, concluding that no one categorization of this phenomenon is definitive. George Fletcher, ‘the Problem of Defining Terrorism’, delivered at a conference on ‘Terrorism – Philosophical Perspectives’, at Tel-Aviv University (organized by the department of Political Science, & the Minerva Center for Human Rights, Tel-Aviv University’s Law Faculty), March 2003.

For wider definitions, see: Ted Honderich, After The Terror, (Edinburgh:

Edinburgh University Press, 2002) 98–99; Jacques Derrida, in Giovanna Borradori, Philosophy in a Time of Terror, Dialogues with Jurgen Habermas and Jacque Derrida (Chicago & London: The University of Chicago Press, 2003), 85–136, esp. 102–110.

See Michael Walzer, Just and Unjust Wars, Chap. 11–12, pp. 176–206.

– 33


the weak as well as the strong and ought to be upheld inter alia for that reason.6 There is, at least in theory, a notion of fair play at work in the laws of jus in bello, which concerns who may legitimately be targeted in wartime. The laws of jus in bello express an, albeit romanticized, perception of war as conducted between equally matched opponents. Section II argues first, that irregular combatants do not play by the rules, and therefore are not entitled to their protection. At the same time, they remain belligerents, unenlightened to the procedural rights granted to criminals in civil law. Second, I argue that the distinction between lawful and unlawful combatants, which specifies those who may legitimately carry out an attack, serves the more basic distinction between combatants and non-combatants. Irregulars, I suggest, do not merely breach the formal reciprocal rules of fair play, their tactics of camouflage and disguise take advantage of the very code they breach. Irregulars are, to say the least, free riders on the prohibitions civilized nations adhere to. Furthermore, by acquiring a hybrid identity of combatant-civilian, they also blur the more basic moral distinction between those who may and those who may not be targeted in wartime. Thus, the more fundamental vice of irregular combatants is not merely their formal lawlessness, or even unfairness, but rather the threat they pose to the ‘‘civilized’’ conduct of war and the protections it affords to an identifiable defenseless civilian population.

How should irregulars be treated? Two immediate cases of confronting irregular warfare come to mind. The first is Israel’s policy of assassinating terrorist leaders often described disparagingly as ‘extra-judicial execution’, a practice not unknown to the American ‘war effort’ as well.7 The second concern is purely American. If Gilbert’s description of the uncertainties of New Terror, New Wars is telling, the cover photo of his book by that The prohibitions stated in Article 23 of the Hague convention are a case in point.

For this type of disparagement, see, for example, B’tselem – The Israeli Information Center for Human Rights in the ‘Occupied Territories’, at http:// www.btselem.org. For a more scholarly account of this objection, prevalent on the Israeli left, see Michael Gross, ‘Assassination: Killing in the Shadow 34 T. MEISELS title is surely worth a thousand words. The photograph depicts a group of detainees captured in Afghanistan and held in the U.S.

Naval base at Guantanamo Bay, Cuba. Hardly unrelated are the military tribunals provided for in an executive order issued by President Bush in November 2001 concerning the trial of any of the terrorists or Al-Qaeda members captured in the subsequent war in Afghanistan. Like Israel’s assassinations, these new extrajudicial measures met with fierce criticism in left-leaning circles,8 although they were not unanimously criticized by liberals.9 Section III analyzes these two contemporary debates and argues that the belligerents in both cases are legitimately regarded as unlawful, and duly denied the rights of soldiers.

Once captured and disarmed, however, irregular combatants, even the terrorists among them, must be guaranteed some minimal standard of humanitarian treatment which ought to be specified and guaranteed by the international community.

There are certain things, I suggest towards the end of this essay, like outright torture, that we may not do to any other person, regardless of his own actions.

–  –  –

In the months after September 11 a small band of conservative lawyers within the Bush administration staked out a forward-leaning legal position regarding the unfolding war in Afghanistan. It was, these lawyers said, a conflict against a vast, of Self-Defence’, forthcoming in J. Irwin (ed.), War and Virtual War: The Challenges of Communities (Amsterdam: Rodopi); Michael Gross, ‘Fighting by Other Means in the Mid-East: a Critical Analysis of Israel’s Assassination Policy’, Political Studies, Vol. 51, 2003, 350–368; Gad Barzilai, ‘Islands of Silence: Democracies Kill?’, forthcoming in Journal of Law and Policy.

On some assassinations carried out by the U.S., see Alan Dershowitz, ‘Killing Terrorist Chieftains is Legal’, The Jerusalem Post, April 22, 2004.

For example, Ronald Dworkin, ‘The Threat of Patriotism’, New York Review of Books, February 28, 2002; Jeremy Waldron, ‘Security and Liberty: The Image of Balance’, The Journal of Political Philosophy, Vol. 11, No. 2 (2003), pp. 191–210; Fletcher, 112–116.

See, for example, Fletcher, Romantics at War, pp. 115–116, where the criticizes Laurence Tribe and Cass Sunstein for publicly supporting this deviation from constitutional practice.

– 35


outlawed, international enemy, in which the rules of war, international treaties, and even the Geneva conventions did not apply. While the administration has avoided taking any clear official stand on these issues, the emergent approach appears to have been that America’s enemies in this war were ‘unlawful’ combatants, without rights.10 Many Americans agreed that Al-Qaeda could not be fought according to traditional rules. The relevant rules, those agreed on at the Hague and Geneva conventions, stipulate the conditions under which combatants are entitled to the war rights of soldiers, specifically the right to prisoner-of-war (POW) status when captured.11 Crucially, POWs can refuse to answer questions beyond name, rank and serial number, and are guaranteed basic levels of humane treatment.12 On the assumption that they are not personally responsible for atrocities or other war crimes, they are immune from any personal culpability and criminal proceedings.13 The legal criteria for attaining the war rights of soldiers appear simple and clear-cut.

According to the Hague Convention of 1907, in order to be See, for example, ‘The Roots of Terror – The Road to Abu Graib began After 9/11, when Washington wrote new rules to fight a new kind of war: A Newsweek investigation’, Newsweek, May 24, 2004. George Fletcher, Romantics at War, 112–113, also suggests a link between the Bush administration’s legal approach and the concept of ‘‘unlawful combatants’’.

Nevertheless, Fletcher stresses that the defense regulations from 28 February 2003, regarding the military tribunals – originally authorized by President Bush on November 13 2001 to try any terrorists or AL-Qaeda member captured in the ongoing war – make no explicit claims about ‘‘unlawful combatants’’.

The Hague Convention (18 October 1907), Annex to the Convention, Section I ‘On Belligerents’, Chapter II ‘Prisoners of War’. Geneva Convention relative to the Treatment of Prisoners of War, adopted on 12 August 1949.

The Hague Convention (18 October 1907), Annex to the Convention, Section I ‘On Belligerents’, Chapter II ‘Prisoners of War’, on humane treatment, Art. 4 and throughout. On questioning and information, see: Art.

9. Geneva Convention relative to the Treatment of Prisoners of War, adopted on 12 August 1949, esp. Part III – Captivity, Section I – Beginning of Captivity, Article 17.

The Geneva Convention relative to the Treatment of Prisoners of War (12 August 1949), Article 99.

36 T. MEISELS entitled to POW status fighters must wear ‘a fixed distinctive sign visible at a distance’ and must ‘carry their arms openly’.14 Two further important conditions are that the combatants in question must form part of a ‘chain of command’ and that they themselves obey the customs and the laws of war. These provisos were intended primarily to distinguish between soldiers on the one hand and spies or saboteurs, and perhaps also guerrilla fighters in civilian clothes, on the other.15 The law is relatively silent, however, regarding this latter category: what, if any, are the rights and immunities of combatants who do not abide by these terms, that is, who do not abide by the rules of war, who wear no insignia and carry their arms in secret?

In Romantics at War, George Fletcher supplies a detailed description of a 1942 case in which eight German would-be spies were captured on U.S. territory shortly after they entered it and before carrying out any part of their mission. Fletcher looks carefully at the landmark U.S. Supreme Court opinion in which Justice Harlan Stone took on the task of retroactively explaining and excusing the swift trial and execution of six of these German infiltrators without due process of law. Crucially, Justice Stone labeled these Germans ‘unlawful combatants’, observing that they had buried their uniforms on arrival and did not bear arms openly. Although at the time of their capture they had not yet carried out any acts of sabotage and espionage, Stone argued that in view of their ‘lawlessness’, stemming from their civilian appearance, they were ‘subject to trial and punishment by military tribunals for acts which render their belligerency unlawful’.16 Fletcher’s in-depth legal analysis of the case is insightful in recognizing the judicial opinion that followed it as the theoretical precedent for President Bush’s controversial makeshift military tribunals. He claims that Chief Justice Stone, writing this after-the-fact opinion, was in fact the The Hague Convention (18 October 1907), Annex to the Convention, Section I ‘On Belligerents’, Chapter I ‘The Qualifications of Belligerents’, Article 1. Geneva Convention relative to the Treatment of Prisoners of War (12 August 1949), Part I – General Provisions, Article 4. See also: Fletcher, Romantics at War, 106; Walzer, 182.


Fletcher, Romantics at War, p. 107.

– 37


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