INTERNATIONAL LAW - FOURTH CIRCUIT CONCLUDES RUSSIAN ARMY OFFICER TURNED TALIBAN CONSPIRATOR NOT ENTITLED TO COMBATANT IMMUNITY - United States v. Hamidullin.

• Author: Getzoff, Elizabeth

The Geneva Conventions are the primary source for humanitarian protections of individuals during times of armed conflict and war under international law. (1) The Geneva Convention (III) Relative to the Treatment of Prisoners of War (Third Geneva Convention) defines a prisoner of war (POW) as someone associated with one power who has been captured or confined by an enemy power during war or armed conflict. (2) In the context of the Third Geneva Convention, the POW label covers only those who have been involved in an international armed conflict and provides them certain protections, which are not allotted to individuals captured during noninternational armed conflict. (3) In United States v. Hamidullin (4) the U.S. Court of Appeals for the Fourth Circuit addressed the distinction between international and noninternational conflict when it declined to extend POW status to Irek Hamidullin because he was involved in a noninternational conflict. (5)

In 2009, Irek Hamidullin, a former officer in the Russian Army, was captured by American soldiers and Afghan Border Police in Afghanistan. (6) Hamidullin was associated with the Haqqani Network, as well as the Taliban, and at the time of his capture, he conspired and then engaged in an assault on an Afghan Border Police post. (7) As a result, Hamidullin was first taken to U.S. facilities in Afghanistan, and then later indicted in the Eastern District of Virginia on charges stemming from the attack on the post. (8)

The indictment against Hamidullin "included providing and conspiring to provide material support to terrorists" and "attempting to destroy an aircraft of the United States Armed Forces in violation of 18 U.S.C. [section] 32." (9) "Hamidullin moved for dismissal of his second superseding indictment" before the trial and argued that he was entitled to combatant immunity under both the Third Geneva Convention and common law. (10) The district court denied the motion to dismiss, stating that although the armed conflict in Afghanistan was an international conflict in 2009, "neither the Taliban nor the Haqqani Network fell within any of the categories of lawful combatants listed in Article 4 of the Third Geneva Convention ... [and] [t]hus, ... as a matter of law, Hamidullin was not entitled to combatant immunity." (11) Following his conviction, Hamidullin appealed and argued again that he was entitled to combatant immunity, but in April 2018, the Court affirmed the lower court's ruling; it emphasized that Hamidullin was not entitled to POW status, and thus, not entitled to combatant immunity under the Third Geneva Convention. (12)

World War II elucidated the severe changes in warfare which called for the revision of the 1929 Convention and later resulted in the completed Third Geneva Convention in 1949. (13) The Third Geneva Convention contains 143 articles and since its enforcement in 1950, it has become globally applicable. (14) Among these articles are Article 2 and Article 3, which respectively designate the two types of armed conflicts recognized by the Third Geneva Convention: international armed conflict and noninternational armed conflict. (15)

Article 2 lists who is covered by the full protections of the Third Geneva Convention. (16) It concerns international armed conflicts and those who are lawful combatants and fall under the specifications of Article 2 are given prisoner of war status and therefore receive the protections that coincide with that status; one of the most important protections is combatant immunity. (17) For example, in United States v. Lindh, (18) the court refused to extend combatant immunity status to the defendant who claimed to be a Taliban soldier and was charged with multiple offenses associated with terrorist groups. (19) The court held that Lindh's involvement with the Taliban did not qualify him for combatant immunity because the Taliban could not be considered armed forces or armed forces for a state, nor could the Taliban itself qualify as a state. (20)

Unlike Article 2, Article 3 of the Third Geneva Convention governs noninternational conflicts, and those who fall under it do not receive combatant immunity. (21) For example, in Hamdan v. Rumsfeld, (22) the defendant was associated with al Qaeda in Afghanistan and was held by the United States in a detention facility for various terrorism offenses. (23) The defendant argued that he was entitled protection of the Third Geneva Convention, which the lower court found to be inaccurate. (24) The Supreme Court found that because the defendant acted with al Qaeda during the conflict in which he was captured, the protections of Article 2 of the Third Geneva Convention did not apply, but rather Article 3 protections were required. (25) The Supreme Court emphasized that Article 3 applies to conflict even if it is not between signatories. (26)

In Hamidullin, the Court deliberated whether Hamidullin was involved in an international or noninternational armed conflict to determine if he was to receive protections under Article 2 or Article 3 of the Third Geneva Convention. (27) The Court reasoned that although the conflict in Afghanistan originally started as an international armed conflict between the United States and Afghanistan, when the conflict ceased, it could no longer be classified as an international armed conflict. (28) The Court concluded that because Hamidullin was involved in an armed conflict of noninternational character, he should be protected under Article 3 of the Third Geneva Convention. (29) As an individual falling under Article 3, therefore, Hamidullin was denied both POW status and combatant immunity. (30)

The Court correctly classified the armed conflict in Hamidullin v. United States as a noninternational armed conflict. (31) There was no question as to whether the Third Geneva Convention applied, as it applies universally to all armed conflicts involving contracting parties and noncontracting parties. (32) The Court correctly isolated the overarching issue by distinguishing Hamidullin's case as either an international or noninternational armed conflict, because this distinction would determine whether Hamidullin could receive POW status and combatant immunity. (33) In support of the Court's decision, the Third Geneva Convention provides that even if there are parties to an armed conflict that deny the state of war, or if the state of war or armed conflict is disputed, Article 3 can still apply. (34)

Compared to United States v. Lindh, it is clear that Hamidullin's protections are not governed by Article 2 of the Third Geneva Convention. (35) In Lindh, the defendant fought as a soldier for the Taliban and argued he was entitled to combatant immunity, not unlike in Hamidullin, where Hamidullin was associated with and fought alongside the Taliban and who also argued for combatant immunity. (36) The court in Lindh distinguished the Taliban from lawful combatants, other armed forces, and traditional state structure; therefore, the defendant was not entitled to combatant immunity. (37) The Hamidullin Court made a similar distinction when it stated that neither the Taliban or the Haqqani Network fell beneath the umbrella of lawful combatants under the Third Geneva Convention. (38) The armed conflict in which Hamidullin was involved, therefore, could not be classified as an international armed conflict and should not be governed by Article 2. (39)

The Court correctly followed and applied established case law when it determined Hamidullin was governed by Article 3 of the Third Geneva Convention. (40) Similar to Hamidullin's case, in Hamdan, the defendant argued his terrorism-related charges were subject to the protections of Third Geneva Convention. (41) The Supreme Court found that the Third Geneva Convention, specifically Article 3, applied to the defendant's case, and concluded that it provides protection to armed conflict not between signatory countries. (42) Similarly, in Hamidullin, the Court found that at the time of the Hamidullin's capture, the War in Afghanistan was no longer between two signatory nations and classified it as a noninternational armed conflict covered under Article 3. (43) As a result of these rulings, terrorist groups similar to the Taliban are unlikely to be considered states or nations, and subsequent cases involving their actions will be classified as noninternational conflicts that are governed by Article 3 of the Third Geneva Convention. (44)

In United States v. Hamidullin, the Court considered whether Hamidullin should be protected under Article 2 or Article 3 of the Third Geneva Convention concerning international armed conflict, or noninternational armed conflict, respectively. Though the Court determined that by 2009, the War in Afghanistan was a noninternational conflict, it still addressed the status of the groups with which Hamidullin was associated--the Taliban and the Haqqani Network--and concluded the groups could not qualify as states or parties in the context of the Third Geneva Convention. For those reasons, the conflict in which Hamidullin was involved did not qualify as an international armed conflict under the Third Geneva Convention. Hamidullin's case qualified under Article 3 of the Third Geneva Convention because it applies to groups that are neither states nor parties to the Third Geneva Convention, and the groups do not have to be signatories. Under the Court's reasoning, therefore, POW status and combatant immunity under Article 2 were not extended to Hamidullin, but instead his protections fell under Article 3 of the Third Geneva Convention.

(1.) See Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces and in the Field, Aug. 12,1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 (protecting wounded and sick soldiers and religious and medical personnel on land during war); Geneva Convention (II) for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked...