|
Article Excerpt
The events of 9/11 perpetrated by A1 Qaeda, a non-state actor, and the subsequent capture of "terrorists" by U.S. forces and detention in Guantanamo, raises questions about how international law should function in such cases. This article examines the military rationale of the international law of war and the challenges to it by human rights organizations and the U.S. justice system.
Should suspected terrorists be treated as POWs or international war criminals? Granting prisoner of war privileges to suspected belligerents in detention has been resisted, particularly for its lack of reciprocity. Current developments in international law have failed to vigorously address this situation.
PRIVILEGED AND UNPRIVILEGED/UNLAWFUL COMBATANTS
Some 270 men of various nationalities are still being detained, by mid 2008, at the United States Army's Guantanamo Bay detention center, located in Cuba. The legal basis for these people's detention, which for some has lasted over six years, is their classification as "unlawful enemy combatants." Who are these "combatants"? Most have been brought to Guantanamo after having been picked up by United States and other officials in diverse countries throughout the world, rather than on the battle fields of Afghanistan and Iraq.
In the law of war, subsequently renamed the "Law of Armed Conflict" and more recently emerging as the "International Humanitarian Law," "distinction" is a cardinal principle. Alluded to in early customary law, confirmed by the United States in the Civil War's Lieber Code (1863) (1) and acknowledged by the international Declaration of St. Petersburg (1868), (2) "distinction" serves to draw a firm dividing line between military personnel, which consist of combatants or belligerents who are subjected to the harms of warfare, and the non-warring civilian populations, which is to be protected from the ill effects of armed conflicts.
Whether derived from the chivalrous practices of medieval warfare, or deliberately adopted later to serve growing reciprocal humanitarian objectives, the prevailing international customs and laws of war guarantee captured and confined combatants--who had taken part in international armed conflicts-lenient, secure and respectful treatment. This humane policy was codified by the Hague Convention in the late nineteenth century and by the four Geneva Conventions of 1949. (3)
Customary international humanitarian law grants several important privileges to surrendered and captured, as well as to sick and disabled combatants (as distinguished from non-combatants), whether located on the battle field or in captivity. These privileges typically include: (1) international immunity from punishment for legally sanctioned wartime acts of violence and destruction (but not "war crimes"); (2) prisoner of war status, with its accompanying benefits, while in captivity; and (3) a post-conflict right to repatriation.
The Inter-American Commission on Human Rights had poignantly pointed out that in the conduct of hostilities, "the combatant's privilege ... is in essence a license to kill or wound enemy combatants and destroy ... enemy military [installations]." (4) Disabled, surrendering or captured combatants may therefore not be refused quarter, nor be killed, wounded (5) or prosecuted for their wartime hostilities, even if such conduct would have constituted serious crimes if carried out by non-combatants, or was undertaken by combatants in time of peace. This immunity from prosecution has been derived from the doctrine of Jean Jacques Rousseau who perceived war as a conflict between "public entities, not between individuals,' (6) thus placing the responsibility for all wars on the state rather than on the individual combatants.
Combatants therefore remain immune from punishment for their very participation in hostilities, whether or not theirs is a "just" or an "unjust" and "aggressive" war in violation of the principle of jus ad bellum. They must, however, in their wartime activities comply with the rules pertaining to the conduct of war, the jus in bello.
The 1907 Hague Convention on Land Warfare specified the qualifications of privileged combatants (referred to in the 1907 document as belligerents. (7) To come within this category one need be a member of either a recognized country's armed forces or affiliated militia (as long as the latter is under responsible command and its members are identified by distinctive insignias, carry their arms openly and comply with the laws and customs of war). Citizens spontaneously rising against an invading army (the so-called levee en masse) also qualify as lawful combatants as long as they carry their arms openly and comply with the laws and customs of war.
The Geneva Prisoner of War Convention, (8) the third of the four new humanitarian conventions adopted in 1949, similarly specified in Article 4 (A) comparable requirements for entitlement to the prisoner of war status. To qualify as a Prisoner of War (POW) one must have served in the armed forces of a party to a military conflict, or in a militia or volunteer corp under responsible command, wearing distinctive insignias, carrying arms openly and conducting their operations in accordance with the laws and customs of war.
With an ever increasing number of post-World War II armed conflicts consisting not of international wars but of internecine or intra-national hostilities, between sub-national political, ethnic and religious groups, or between them and the national governments, a new concern for the humane treatment and humanitarian law rights of the greatly enlarged body of nonstate belligerents had been manifested. How is international humanitarian law to respond to demands for combatancy status and prisoner-of-war privileges by domestic dissidents and human rights advocates, on the one hand, and by religious extremists and ethnic fanatics and terrorists, on the other? What should be the law's response to possible claims for privileged combatancy, for POW status and for repatriation by members of the Irish Republican Army, by Afghanistan's Taliban and Bin Laden's al-Qaeda loyalists, by Lebanon's Hezbollah militia-men and by Palestinian Hamas suicide bombers--or by other belligerents who altogether reject the customary and international laws of warfare?
Should these latter groups of non-state actors engaged in anti-state warfare and criminality, who usually defy all rules of international law of war, be considered combatants or international offenders? And if prosecuted should they be proceeded against exclusively under domestic criminal law rather than international humanitarian law? Moreover, could some of the abbreviated detention and trial institutions and procedures developed for the military forces, in conjunction with the law of war, be utilized to by-pass the cumbersome individual rights safeguards mandatory under traditional domestic or international criminal law? The United States retort to the Twin Towers bombing through a declaration of "war" on terrorism was undoubtedly due, at least in part, to the administration's quest for the least cumbersome procedures permitting the detention, confinement and interrogation of individuals on the mere suspicion of terrorist connections.
SHOULD SUSPECTED TERRORISTS BE TREATED AS POWs OR AS WAR CRIMINALS?
Despite repeated references by American government officials, military personnel,...
|
