Lawful and unlawful combatants: what the law of war actually says

Lawful and unlawful combatants can both be detained for the duration of the conflict. Unlawful combatants can also be tried, and if found guilty can be (1) treated as criminal rather than PoWs and (2) held past the duration of the conflict.

The mail continues to run heavily against my position on detaining al-Qaeda and Taliban fighters. There’s a tendency to attribute the crimes of BushCo to the American government as an institution, and therefore to assume that any power that was abused from 2001-2008 will continue to be abused under the new management. That seems to me an anjustified assumption.

However, I’m getting some support. A reader with JAG experience writes:

I generally agree with you on the question of preventive detention. I think it is absurd when I hear people assert that if you can’t convict someone of a crime by proof beyond a reasonable doubt using the normal rules of evidence in a criminal trial, then you can’t hold them as a combatant detainee. That is patently false under the law of war, and the ACLU, which I often have a lot of respect for, is ignoring the law in favor of an ideological predisposition in much of the same way as President Bush did (albeit without torturing anyone in the process).

You may be familiar with these distinctions, but I thought I’d pass them along because the topic of detainee classification is very poorly understood outside of the world of international law scholars and JAG officers. If you are a POW, it is because you have observed certain rules during the war laid down in the Third Geneva Convention of 1949 (e.g., you carried your arms openly, did not target civilians, wore some kind of distinguishing insignia, refrained from committing acts of perfidy, etc.).

Under Geneva III, there are three basic categories for classifying someone during a war: a) civilians; 2) lawful enemy combatants (also known as POWs), and; 3) unlawful enemy combatants. The status determination hearing is where a “regularly constituted tribunal” is supposed to decide which of the three categories the evidence shows you belong to as a detainee.

Civilians (those who took no part in the armed conflict) obviously have to be released; holding someone determined to be a civilian is clearly preventive detention. Lawful enemy combatants are people who have a lawful right to engage in warfare. They can be prosecuted only for violating the laws of war (committing war crimes, crimes against humanity, etc.), but they don’t have to be prosecuted. Their mere status as enemy combatants is sufficient to hold them until the end of the conflict. Unlawful enemy combatants are those who engaged in armed conflict but who didn’t follow the rules (note, though that this means that they weren’t following the rules when they were caught).

Being an unlawful combatant has consequences, but contrary to John Yoo’s assertions, it doesn’t mean that you can be tortured. Rather, the biggest consequence is that you can be prosecuted for engaging in the armed conflict. That is to say, lawful combatants are allowed to shoot at enemy soldiers – that’s the point of war. Because they don’t follow the rules, unlawful combatants aren’t allowed to shoot at soldiers and can be prosecuted for attempted or completed murder if they do.

Again, though, criminal prosecution in these cases is optional, not mandatory. Granted, getting a criminal conviction is nice because it means that you can put them in a real prison and hold onto them even after the armed conflict ends. But until it ends, the only thing necessary to hold onto someone is a status determination by a regularly constituted tribunal.

There are a lot of legitimate questions here that people like the ACLU could be raising. For example, is it possible for someone in Yemen to be an active participant in an armed conflict taking place in Afghanistan so that the Yemeni can be considered anything other than a civilian subject only to regular criminal law? Are the status determinations themselves sufficiently fair to allow us to make sound assessments? The ACLU isn’t selecting its criticisms so carefully, though. Instead, they want everyone to have a criminal trial.

I, too, think that a law enforcement model is probably better for combating terrorism than a war model. Nevertheless, that doesn’t mean that we have to reject the laws of war when we are actually at war as in Afghanistan and Iraq. Suggesting that we do is not only a loser with American public opinion, its a loser under the law.

The key issues, in my mind, are:

1. Status hearings that honestly try to separate fighters from non-fighters.

2. Restriction of the “combatant” designation to members of named groups in actual armed conflict with the U.S., not some vague category of “terrorists.”

3. Restriction of the period of confinement to the period of actual armed confict with the group to which the detainee belongs.

4. POW treatment for all detainees except those convicted of war crimes.

If anyone has evidence that the Obama Administration has the wrong position on any of those issues, I’d like to hear about it.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: