Query: Is There a Status of 'Unlawful Combatant'?

• Author: Marco Sassoli
• Position: Professor of International Law at the University of Quebec in Montreal, Canada
• Pages: 57-67

V

Query: Is There aStatus

of "Unlawful Combatant?"

Marco Sassoli1

Introduction

Theargument ofthe United States administration that those individuals cap-

tured during the "global war on terror"2are unlawful combatants not enti-

tled to prisoner of was status may be summed up as follows. 3First, the United

States is engaged in an international armed conflict—the "war on terrorism." This

is, second, one single worldwide international armed conflict against anon-State

actor (al Qaeda) or perhaps also against asocial and criminal phenomenon (ter-

rorism). That armed conflict started—without the United States so characterizing

it at that time—at some point in the 1990s and will continue until victory. Third,

while the United States claims in this conflict all the prerogatives that international

humanitarian law (IHL) applicable to international armed conflicts confers upon a

party to such aconflict, in particular the right to detain enemy combatants without

any judicial decision in Guantanamo; it denies these detainees the protections of

most of that law by claiming that their detention is governed neither by the IHL

rules applying to combatants nor by those applicable to civilians. Fifth, all those

considered to be enemies in the "war on terrorism," even those denied the benefit

of IHL's full protections, are not dealt with under domestic criminal legislation or

under any other new or existing legislation, nor do they benefit from international