Thinking the unthinkable: has the time come to offer combatant immunity to non-state actors?

• Author: Corn, Geoffrey S.

1. INTRODUCTION

   If there is one designation that has come to symbolize the complexity of characterizing the struggle against international terrorism as an armed conflict, it is "unlawful enemy combatant." That designation, adopted by the Bush Administration to label Taliban and al-Qaeda fighters captured in Afghanistan beginning in 2001, has come to symbolize a variety of propositions. For the Bush Administration, it was a designation of illegitimacy, providing the foundation for a series of legal and policy decisions allowing a level of treatment inconsistent with the traditional standards applicable to prisoners of war. For critics of the United States, it was the symbolic lightning rod that reflected the ultimate illegitimacy of both designating the struggle against terrorism as a "global war" and the legal exceptionalism that appeared to define the U.S. approach to the treatment of opponents captured in the course of this struggle. (1)

   For the U.S. military and the al-Qaeda and Taliban operatives it detained following September 11, the characterization represented something much more palpable. From a detention standpoint, it defined a group of subdued enemy personnel who would be detained to prevent their return to hostilities, but who would also be denied the legal status of prisoner of war and the accordant protections of the Third Geneva Convention. (2) This characterization was also central to the U.S. theory of criminal responsibility for these captives. Based on a theory of war crimes liability first enunciated by the U.S. Supreme Court in Ex parte Quirin (a theory considered dubious by many international law experts), operating as an unlawful enemy combatant was alleged by the United States as a crime in and of itself--a crime falling within the subject-matter jurisdiction of military tribunals. (3) Accordingly, the designation also resulted in the creation of military commissions to try these captives for, inter alia, their participation in hostilities. (4)

   These issues of detention and criminal culpability are, however, best understood as consequences of the core significance of the unlawful combatant characterization. The concept of the unlawful enemy combatant is more than just a legal status; it is a moral condemnation. That condemnation is based on a simple premise: only properly authorized and qualified individuals may legitimately engage in armed hostilities. All other individuals lack the "privilege" to do so. (5) Indeed, the "unlawful combatant" is a synonym for the "unprivileged belligerent," the substitute characterization adopted by the Obama administration for these detainees. (6) Operating as a "combatant" without privilege deprives the individual of legal and moral equivalency with his privileged opponent: state actors. As a result, the rules established by international law to protect these "privileged" combatants must be denied to the unprivileged counterpart. (7)

   This theory of "status" and "privilege" among combatants is a genuine article of faith. It is derived from an unassailable interpretation of the Third Geneva Convention's prisoner of war qualification equation. Prisoner of war status, which is international law's manifestation of the "privileged" or "lawful" combatant, is reserved exclusively for combatants who fight on behalf of a state during inter-state armed conflict and who satisfy the widely known conditions of carrying arms openly: wearing a fixed distinctive emblem recognizable at a distance, operating under responsible command, and complying with the laws and customs of war. What is equally important in this equation, however, is that these factors apply only to combatants engaged in inter-state armed conflicts, effectively excluding from the lawful combatant status an individual fighting on behalf of an entity not affiliated with state authority. (8)

   During the past several decades the law of armed conflict applicable to armed conflicts between states (international armed conflicts) and armed conflicts between states and non-state groups (non-international armed conflicts) has undergone a major transformation. Customary norms originally developed to apply exclusively to international armed conflict have migrated to the realm of non-international armed conflict. As a result, the regulatory distinction between these two categories of armed conflict is increasingly imperceptible. However, entitlement to prisoner of war status remains perhaps the most significant exception to this trend. States have been absolutely unwilling to extend this privilege with its accordant lawful combatant immunity to non-state operatives. The determination to preserve the line between the authority to participate in armed conflict with state sanction and the illegitimacy of doing so without such sanction is almost certainly motivated by a desire to preserve the prerogative to sanction such unprivileged belligerents for participating in hostilities. Thus, for states, tribunals charged with interpreting and applying this law, and most commentators, extending combatant immunity to non-state belligerents has and remains unthinkable.

   For United States military lawyers, this equation is often referred to as the "right type of conflict" and "right type of person" test. (9) When applied to the "war on terror," this qualification equation produced an inevitable outcome: individuals fighting on behalf of non-state entities could never qualify as prisoners of war. (10) Nonetheless, by designating the struggle as an "armed conflict" they were thrust into a twilight zone of status. Because they were belligerents in an alleged armed conflict, they could be targeted and detained like any other "lawful" combatant. However, because they fought for a non-state entity, they could not qualify as prisoners of war and would be condemned as international criminals for this participation. (11)

   This theory of detention without status first adopted by President Bush was ultimately endorsed by both Congress (12) and the Supreme Court. (13) Accordingly, there is little question that if such individuals are detained in the context of an armed conflict by the United States and are properly found to be enemy combatants or belligerents, (14) the detention without prisoner of war status theory that continues to this day to be the legal basis for preventive detention, is legally sound. Of course, many dispute both of these predicate assumptions, arguing that the struggle against terrorism is not an armed conflict and that terrorist operatives are not properly designated as enemy belligerents. (15) But assuming arguendo that the United States and other states will persist in this view of the struggle against terrorism, the rationale that formed the basis for this qualification equation will continue to result in a practical anomaly: individuals will be preventively detained based on an invocation of the customary law of armed conflict but will be denied prisoner of war status and the protections resulting from that status.

   At the center of this protection is the concept of combatant immunity--the protection of the enemy captive from criminal sanction for his or her lawful, pre-capture belligerent acts (acts that comply with the regulatory norms of the law of armed conflict). This immunity, and the other humanitarian protections afforded to prisoners of war, developed in large measure to incentivize compliance with humanitarian law. Accordingly, belligerents fighting on behalf of a non-state entity, even when conducting their belligerent activities in accordance with the rules of war, are denied both the benefits of international humanitarian law and, by implication, the incentive to comply with this law based, not on their conduct, but instead on the cause for which they fight.

   The unlawful combatant characterization has spawned a proverbial avalanche of legal scholarship, commentary, and analysis. This discourse has even been punctuated by several Supreme Court decisions, such as Hamdi v. Rumsfeld (16) and Hamdan v. Rumsfeld. (17) What has been relatively absent, however, is a critical assessment of whether the underlying rationale for the legal dichotomy between the lawful and unlawful combatant is logically applicable to nonstate transnational actors. Such an assessment must focus on not only the origins of this dichotomy, but also--and perhaps more importantly---on the ostensible effect intended by denial of lawful combatant status for non-state actors. Considering the issue through this "effects based" analytical lens raises a genuine question as to whether the denial is the most effective way to achieve these desired effects.

   This Article will explore this question by focusing on both of these proposed analytical elements. It will begin with a review of the origins of the lawful/unlawful enemy combatant dichotomy. It will then discuss the ostensible effects the United States desires to achieve by applying this dichotomy to transnational non-state actors. Ultimately, it will question whether the unthinkable-extending the opportunity to qualify for lawful combatant status with its accordant combatant immunity--might actually offer a greater likelihood of achieving these effects than clinging to the current lawful/unlawful combatant dichotomy.

2. THE ORIGINS OF THE LAWFUL/UNLAWFUL COMBATANT DICHOTOMY

   1. The Treaty Foundation

      Even the most cursory review of the history of humanitarian law reveals the origins of the lawful/unlawful combatant dichotomy. This dichotomy is inextricably intertwined with the concept of prisoner of war status, a concept that traces its roots to the development of the nation-state and the regulation of hostilities between armed forces serving those states. (18) It is therefore unsurprising that prisoner of war status remains today contingent on two fundamental predicates: first, a conflict between two or more states; second, that the individual warrior fighting on behalf of a...