Al-Qaeda & Taliban unlawful combatant detainees, unlawful belligerency, and the international laws of armed conflict.

• Author: Bialke, Joseph P.

1. INTRODUCTION

   International Obligations & Responsibilities and the International Rule of Law

   The United States (U.S.) is currently detaining several hundred al-Qaeda and Taliban unlawful enemy combatants from more than 40 countries at a multi-million dollar maximum-security detention facility at the U.S. Naval Base in Guantanamo Bay, Cuba. These enemy detainees were captured while engaged in hostilities against the U.S. and its allies during the post-September 11, 2001 international armed conflict centered primarily in Afghanistan. The conflict now involves an ongoing concerted international campaign in collective self-defense against a common stateless enemy dispersed throughout the world.

   Domestic and international human rights organizations and other groups have criticized the U.S., (1) arguing that al-Qaeda and Taliban detainees in Cuba should be granted Geneva Convention III prisoner of war (POW) (2) status. They contend broadly that pursuant to the international laws of armed conflict (LOAC), combatants captured during armed conflict must be treated equally and conferred POW status. However, no such blanket obligation exists in international law. There is no legal or moral equivalence in LOAC between lawful combatants and unlawful combatants, or between lawful belligerency and unlawful belligerency (also referred to as lawful combatantry and unlawful combatantry).

   The U.S. has applied well-established existing international law in holding that the al-Qaeda and Taliban detainees are presumptively unlawful combatants not entitled to POW status. (3) Taliban and al-Qaeda enemy combatants captured without military uniforms in armed conflict are not presumptively entitled to, nor automatically granted, POW status. POW status is a privileged status given by a capturing party as an international obligation to a captured enemy combatant, if and when the enemy's previous lawful actions in armed conflict demonstrate that POW status is merited. In the case of captured al-Qaeda and Taliban combatants, their combined unlawful actions in armed conflict, and al-Qaeda's failure to adequately align with a state show POW status is not warranted.

   The role of the U.S. in the international community is unique. The U.S., although relatively a young state, is the world's oldest continuing democracy and constitutional form of government. The U.S. is a permanent member of the United Nations Security Council, the world's leading economic power, and its only military superpower. The U.S. is the only country in the world capable of commencing and supporting effectively substantial international military operations with an extensive series of military alliances, and the required numbers of mission-ready expeditionary forces consisting of combat airpower, land and naval forces, intelligence, special operations, airlift, sealift, and logistics. Great influence and capabilities, however, exact great responsibility.

   As a result of its unique role and influence within the international community, the U.S. has been placed at the forefront of respecting LOAC and promoting international respect for LOAC. The U.S. military has the largest, most sophisticated and comprehensive LOAC program in the world. The U.S. demonstrates respect for LOAC by devoting an extraordinary and unequalled level of resources to the development and enforcement of these laws, through an unparalleled LOAC training and education regimen for U.S. and allied military members, and a conscientious and consistent requirement that its forces comply with these laws in all military operations.

   Customary LOAC binds every country in the world including the U.S. International collective security and U.S. national security may be achieved only through a steadfast commitment to the Rule of Law. For the U.S. to grant POW status to captured members of al-Qaeda or the Taliban would be an abdication of these international legal responsibilities and obligations. It would set a dangerous precedent contrary to the Rule of Law and LOAC, and to the highest purpose of the laws of warfare, the protection of civilians during armed conflict.

   This article begins by explaining how LOAC protects civilians through the enforcement of clear distinctions between lawful combatants, unlawful combatants, and protected noncombatants. It summarizes the four conditions of lawful belligerency under customary and treaty-based LOAC, and instructs why combatants who do not meet these conditions do not possess combatant's privilege; that is, the immunity provided to members of the armed forces for acts in armed conflict that would otherwise be crimes in time of peace.

   The article then reviews why LOAC does not require that captured unlawful combatants be afforded POW status, and addresses specifically captured al-Qaeda and Taliban fighters. The practices and behavior of these fighters en masse in combat deny them privileges as lawful belligerents entitled to combatant's privilege. The article argues that al-Qaeda unlawful combatants are most appropriately described as hostes humani generis, "the common enemies of humankind."

   The article subsequently explains why al-Qaeda members, as hostes humani generis, are classic unlawful combatants, as part of a stateless organization that en masse engaged in combat unlawfully in an international armed conflict without any legitimate state or other authority. The article explicates al-Qaeda's theocratic-political hegemonic objectives and its use of global terrorism to further those objectives. The article expounds as to why international law deems a transnational act of private warfare by al-Qaeda as malum in se, "a wrong in itself." Related to al-Qaeda's status as hostes humani generis, the article describes one of the Taliban's many violations of international law; that is, willfully allowing al-Qaeda hostes humani generis to reside within Afghanistan's sovereign borders from where al-Qaeda could and did attack unlawfully other sovereign states. The article then details a state's inherent rights if and when attacked by such hostes humani generis.

   Following this, the article continues by asserting that there is no doubt or ambiguity as to the unlawful combatant status of the Taliban and al-Qaeda (shown by the failure of the Taliban en masse to meet the four fundamental criteria of lawful belligerency, al-Qaeda's statelessness en masse, and both their many acts of unlawful belligerency and violations of LOAC). As a result, the article states that there is no need or requirement for proceedings under Geneva Convention III, art. 5 to adjudicate their presumptive unlawful combatant status and non-entitlement to POW status pro forma.

   The article subsequently illustrates that, even though captured al-Qaeda and Taliban are unlawful combatants and not POWs, the U.S. as a matter of policy has treated and continues to treat all al-Qaeda and Taliban detainees humanely in accordance with customary international law, to the extent appropriate and consistent with military necessity and in a manner consistent with the principles and spirit of the Geneva Conventions. The article discusses that, under LOAC, the detainees are captured unlawful combatants that can be interned without criminal charges or access to legal counsel until the cessation of hostilities. However, the article then points out that the U.S. has no desire to, and will not, hold any unlawful combatant indefinitely.

   The article then notes that al-Qaeda and Taliban detainees, as unlawful combatants, are subject to trial by U.S. military commissions for their acts of unlawful belligerency or other violations of LOAC and international humanitarian law. It expounds that, when an opposing force detains an unlawful combatant in time of armed conflict, the unlawful combatant's right to legal counsel or other representation only arises if criminal charges are brought against the unlawful combatant. The article illustrates the security measures, evidence procedures, and the many executive due process protections afforded to detainees subject to the jurisdiction of U.S. military commissions. The article states that, if tried and convicted in a U.S. military commission, a detainee may be required to serve the adjudged sentence, such as punitive confinement.

   The article concludes that it is in the immediate and long-term national security interests of the U.S. to respect and uphold LOAC in all military operations. Ultimately, the United States has an obligation to the international community and the Rule of Law not to afford POW status to captured unlawful combatants such as the al-Qaeda and Taliban detainees in furtherance of both domestic and international security.

2. INTERNATIONAL LAW, THE U.S., AND TALIBAN & AL-QAEDA UNLAWFUL BELLIGERENCY

   1. Lawful Combatants, Unlawful Combatants, and Noncombatants

      1. Not all Captured Combatants are Entitled to POW Status

         According to both customary and treaty-based LOAC, al-Qaeda and Taliban detainees do not' meet the requirements to be lawful combatants. They are unlawful enemy combatants who are not legally authorized under LOAC to engage in armed conflict, but do so without authority. Unlawful combatants also include combatants who engage in armed conflict in a manner that violates certain international laws of armed conflict. Unlawful combatants are proper objects of attack during an international armed conflict, and upon capture, may be denied Geneva Convention III POW status. (4) In such cases, whenever the U.S. withholds Geneva Convention III POW status from captured unlawful combatants, U.S. policy directs that they be treated humanely and similar to lawful combatants or POWs. (5) Additional to the Geneva Conventions of 12 August 1949 (Protocol I) (6) also recognizes that unlawful combatants captured during an international armed conflict are not required to be accorded POW status. Art. 75 describes unlawful combatants as individuals "who are in the power of a Party to the...