Combatants in Afghanistan: What’s in a Name?

Abstract

As the battle to contain the insurgency in Afghanistan continues, it is important that the current generation of soldiers, and their leaders, thoroughly understand the principle of distinction and the legal concepts that makes one person a legal target and another not. Current international law recognises only two categories of persons with respect to conflict: combatants and civilians. This article analyses relevant international law and clarifies what has become a confused and often misunderstood area of law. This article also demonstrates that current international law is more than capable of supporting both humanitarian and human rights imperatives while also maintaining the legitimate need for security and justice in the face of contemporary insurgency, terrorism and conflict.

---

Few wars have been so well chronicled as that now desolating America. Its official narratives have been copious; the great newspapers of the land have been represented in all its campaigns; private enterprise has classified and illustrated its several events, and delegates of foreign countries have been allowed to mingle freely with its soldiery and to observe and describe its battles. The pen and the camera have accompanied its bayonets, and there has not probably been any skirmish, however insignificant, but a score of zealous scribes have remarked and recorded it. ¹

In 1866, the chronicling of the American Civil War provided non-combatants a previously unimagined view of conflict. In 2010, the transparency of modern conflict is presumed and the intermingling of combatants and civilians is profuse. Political warriors and their staffers now hotly contest the wars of perception, adding their flair and turn to all matters political and otherwise. The perception of what violent actions are fair, proportionate and discriminate is carefully managed and vehemently argued by savvy legal chiefs in major cities around the world.

Prior to 2001, few people would have sat around the dinner table debating the merits, definitions and rights of unlawful belligerents, illegal combatants and enemy civilians. The events of 11 September 2001 changed the face of conflict and exposed mainstream audiences to what was previously considered obscure international law.² Current international humanitarian law (IHL) recognises only two categories of persons with respect to conflict: combatants and civilians. This article will analyse IHL and clarify what has become a confused and often misunderstood area of international law.

The primary contention of this article concerns the status of persons engaged in armed conflict in Afghanistan and whether, in legal terms, these people should be regarded as combatants, non-combatants or as unlawful belligerents. This third category is confusing and unnecessary, a legally grey area that has created sufficient confusion to allow the United States to deny individuals their legal rights as either combatants who are prisoners of war (POW) or as civilians charged or being investigated for committing criminal offences.

International Humanitarian Law

As a precursor to any discussion, it is important to clarify the precise nature of IHL. Sometimes referred to as the Laws of Armed Conflict or the Law of War, IHL comprises the rules governing the appropriate conduct of war. IHL does not concern itself with the legality of initiating war, but is based on the premise that conflict has already begun.³ While IHL contains elements of human rights law, it is separate to and distinct from this class of law. Once conflict has commenced, IHL provides the guidelines governing what constitutes acceptable conduct and, importantly, what does not. ⁴

As long as wars have been fought, laws have existed that attempt to limit the iniquity of armed conflict.⁵ The best known and most relevant body of IHL is the Geneva Conventions and the two additional protocols.⁶ Fundamental to the Geneva Conventions is the notion

... that the law can and should protect all persons caught up in war—making the difference between life and death, between humanity and inhumanity—whether they are civilians, prisoners of war, the wounded, the hors d’combat, or solders on the battlefield.⁷

The relevance of IHL during armed conflict seems obvious, as does the relationship between the Geneva Conventions and IHL. Yet there are a number of irregularities in the interpretation of IHL, and these form the subject of the next section of this article.

The Issues

The events of 11 September 2001 shaped not only the attitude of a generation towards its own security, but also the way that generation viewed its rights and responsibilities to remove ‘evil’ from the world:

For most Americans, hit for the first time with such violence within their own territories, and on such symbols of political power and authority, outrage remains the only serious ground for judgment. In the USA especially, political judgment has been powerfully shaped by an elemental ethic of revenge.⁸

This acceptance of the need for revenge and the accompanying rhetoric has been particularly damaging to interpretations of and adherence to IHL. In his article in the Yale Journal of International Law William Taft has described the passions that are invariably aroused when personal and shared safety is at stake and explain how these have led to the misapplication and infringement of IHL.⁹

However, the deliberate misinterpretation of IHL for political purposes, even for temporary security reasons, cannot be justified within the bounds of international law.¹⁰ The Vienna Convention on the Law of Treaties (VCTL) is very clear on pacta sunt servanda—the legal concept that treats all agreements as binding.¹¹ The United States, along with over half the states of the world, has ratified the VCLT and remains legally bound to comply with it. Like any other state, the United States has an international legal obligation to adhere to treaties which it has ratified. The United States also ratified the four Geneva Conventions on 2 August 1952 and must comply with their terms.¹² Such compliance is not a matter of political convenience; the Geneva Conventions apply at all times during armed conflict and are not negotiable.

The separation of legal and political considerations is fraught with difficulty and is clearly not an area mastered by US powerbrokers, although the link between domestic security and political success remains logical and reasonable. Scholars such as Hobbes, Machiavelli, Waltz and Mearsheimer have long argued for the use of drastic measures to achieve or maintain security. However, even they have rarely advocated the employment of methods espoused by certain members of the international community since 2001—including members who claim to be morally irrefutable and beyond reproach.¹³ In addition to the now-notorious extraordinary renditions, authorised methods of torture and covert operations, politicians and legal advisors alike have energetically pursued legal concepts that are fraught with irregularity in their treatment of the enemy. The most significant of these has been the categorisation of persons during armed conflict. This is not to suggest that the IHL definitions themselves are entirely unambiguous. Gabor Rona, for example, notes that:

... ‘unlawful combatant’ is an oxymoron, while the term ‘lawful combatant’ is redundant. A combatant is immune from criminal responsibility for lawful acts of belligerency, but may be prosecuted for war crimes such as targeting civilians or using prohibited means of combat, such as biological weapons or rape. In turn, a combatant may be targeted and detained without charge or trial for the duration of the armed conflict.¹⁴

This article will avoid the moral arguments on insurgents in Afghanistan and transnational terrorism. These are emotive issues that have led to the political manipulation of what are essentially legal matters. Likewise, no comment is offered on how persons suspected of fighting against a democratically elected government in Afghanistan or engaging in illegal terrorist actions around the world should be pursued. However, it is important to emphasise that, until such time as a new legal system is introduced, compliance with existing laws is essential.¹⁵

The United States and many of its allies interpreted the actions and statements of al-Qaeda’s members and leaders as declarations of war and thus considered themselves to be at war with al-Qaeda and those who provide its members support and sanctuary. Commenting on a different war, the International Criminal Tribunal for the former Yugoslavia noted that,

Armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.¹⁶

The United States accepts that it is bound by IHL in its actions against enemy forces in Afghanistan, arguing that its response and continued actions are thus lawful and within the purview of international law.¹⁷ The initial response of the United States and its allies in the early stages of the War on Terror was generally accepted as reasonable and lawful. As the campaign continued, however, irregularities in the US interpretation of IHL led to a rapid and widespread reversal of opinion.

One of the most contentious issues has been the failure of the United States to recognise persons captured as either POWs or as civilians. The consequent creation of a new category of person with limited rights has stirred a maelstrom of criticism, particularly since this is contrary to the Geneva Conventions which enjoy near-universal ratification.¹⁸ Furthermore, IHL is now firmly rooted in customary international law and must be seen as applicable to all states, even those who have yet to accede to the Geneva Conventions. The United States accepts that the Geneva Conventions apply to its actions in Afghanistan and yet its interpretation of laws that are clearly written and easily comprehended has baffled many.¹⁹

Combatant Versus Non-Combatant

He who kills in peacetime may be sentenced to death or life imprisonment; he who kills in wartime is decorated while the band plays.²⁰

It is generally accepted that the United States and its allies are in a lawful state of war with al-Qaeda and the Taliban, a conflict that is governed by IHL.²¹ However, whether members of the Taliban should have been accepted as combatants representing what comprised an Afghan national government and regular military organisation at the time, or whether members of al-Qaeda should have been accepted as civilians committing criminal acts remains contentious. Under US policy, all parties are treated as neither civilians nor combatants and denied the privileges afforded by either status.²² This implies the creation of a third category of persons which has excited even more debate than the appropriateness of the original two categories.

The Two and Only Two Categories of Persons

Never before has it been so difficult for the Soldier to distinguish between the targeted and the protected—the combatant and the civilian. Compliance with this concept of distinction is the fundamental difference between heroic Soldier and murderer. ²³

The duties of soldiers in war are numerous and complex. It is essential for their sake and that of the civilians and combatants they encounter that the status of all persons is logical and readily identifiable. Perabo describes the principle of discrimination as discerning between two distinct groups: those who are combatants and those who are not. Those persons who fall into the latter category are to be granted immunity from the effects of war as far as practicable.²⁴ The distinction between combatants and non-combatants is as old as it is important, and it is through this distinction that humanitarian considerations are infused into the fabric of violent conflict. However, even after centuries of conflict and accompanying agreements, treaties and conventions, there remains a degree of uncertainty concerning the respective specifications of combatants and civilians.²⁵

It has been argued that the distinction between the combatant, who is entitled to the privileges of a POW, and the non-combatant, who is not, could be made by a competent tribunal in accordance with Article 5 of Geneva Convention III.²⁶ This opens the Pandora’s box of what constitutes a competent tribunal. This is an issue which, while beyond the scope of this article, has been discussed and critiqued by legal scholars and courts alike. Suffice to say, on the battlefield, the distinction between a combatant (a legitimate target) and a non-combatant is all too uncertain. This is both unfortunate and unnecessary as the Geneva Conventions provide a very clear test. Members of a regular armed force of a party to the conflict, volunteer corps or similar who fulfil all the criteria described in Article 4(2) of Geneva Convention III are entitled to POW status and the associated privileges. Those people who are not protected by Geneva Conventions I, II or III are regarded as civilians and protected in accordance with the provisions of Geneva Convention IV. Jennifer Elsea further contends that even those civilians who commit acts of belligerency retain their status as civilians and the relative protection provided by Geneva Convention IV.²⁷

Given that one of the two fundamental principles of IHL is the necessary distinction between combatants and civilians, it is surprising that grey areas exist in the distinction between these two groups.²⁸ Israel’s Supreme Court, sitting as the High Court of Justice, having considered this issue, clearly ruled that there is no third category of person:

That is the case according to the current state of international law, both international treaty law and customary international law. It is difficult for us to see how a third category can be recognized in the framework of The Hague and Geneva Conventions. It does not appear to us that we were presented with data sufficient to allow us to say, at the present time, that such a third category has been recognized in customary international law.²⁹

This debate is critically important for several reasons, principal among these the fact that it must be clear who is to be afforded what rights and privileges during armed conflict. Combatants are legitimate targets during conflict, and have the right to take part in hostilities against an enemy. As a result, combatants are afforded the privilege of POW status if captured by an enemy and they are not liable to prosecution as long as they act in accordance with IHL. Conversely, civilians are granted immunity from attack, but do not have the right to directly participate in hostilities and lose their immunity from attack if they do so. Civilians are also liable to prosecution for any acts that constitute a crime, such as murder and assault, even if these are waged against an enemy force.³⁰ The next section of this article deals with the complexities—and simplicities— of the two categories of persons: combatants and civilians.

Combatants

Simply put, combatants are those persons who ‘have the right to participate directly in hostilities’.³¹ While civilians certainly benefit from IHL, as a body of law IHL was created for the benefit of combatants and allows combatants to perform their duties—acts that would normally be illegal—with confidence that, as long as those acts do not exceed the permissible standards of IHL, they will be immune from prosecution.³² In this context, soldiers accept that they may be the subject of attack, while civilians are not.³³

The concept of freedom of action without prosecution for acts normally considered crimes is often taken for granted. However, with this right comes a degree of responsibility. While granted the right to conduct lawful acts of war, combatants are expected to comply with proportionality in accordance with the principle that the means and methods of warfare are not unlimited.³⁴ Combatants are also expected to differentiate between those potential targets that are lawful and those that are not, principally: civilians, hors de combat, places of worship, education, cultural significance, and objects of indispensable importance to the survival of the civilian population. Combatants have a special status that protects them from prosecution as long as they comply with the laws of war.³⁵

This, of course, means that combatants are targets themselves. As long as they remain members of the armed forces of a party to a conflict, they remain legitimate targets until such time as the conflict ceases or they are wounded or surrender.³⁶ The Geneva Conventions consider combatants to be those

... [m]embers of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces’ and ‘[m]embers of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict ... provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

(a)  That of being commanded by a person responsible for his subordinates;

(b)  That of having a fixed distinctive sign recognizable at a distance;

(c)  That of carrying arms openly; and

(d)  That of conducting their operations in accordance with the laws and customs of war.³⁷

Thus it is clear that those persons who are members of armed forces of a party to the conflict, in addition to others who are members of militias, volunteers corps and the like, who also meet the four additional criteria, are combatants. This category of person also retains the right—as long as they retain their status as a combatant—to be treated as a POW in accordance with Geneva Convention III.

Civilians

Article 50(1) of Additional Protocol I to the Geneva Conventions of 1949 defines a civilian as any person who is not a combatant.³⁸ Dormann succinctly argues that in any conflict there are combatants or civilians—there is no grey area or third category as such.³⁹ This is not to say that a civilian will never take part in combat; rather, that a civilian participating in conflict will remain a civilian and thus not be afforded the rights and privileges of a combatant. Likewise, civilians who commit acts that are deemed unlawful may lose precious privileges.

Civilians who commit acts against any party to a conflict are liable to prosecution, as they do not enjoy the same immunity from prosecution as combatants. Indeed, a civilian who commits an illegal act against any party to conflict has committed a criminal act and should be treated as a criminal: investigated, questioned and, if appropriate, prosecuted and punished.⁴⁰ Put simply, civilians do not have a legal right to participate in armed conflict. Regardless of the moral obligations civilians may feel, as non-combatants, they are expected to comply with their lawful duties as civilians, including refraining from active participation in hostilities. Civilians who participate in hostilities retain their status as civilians, but lose their immunity from attack and become lawful military targets for the duration of that participation.⁴¹ They also remain liable for prosecution for the crimes they commit. Direct participation in conflict does not qualify civilians for the same immunity from prosecution that combatants enjoy. The Israeli High Court of Justice determined that:

... a civilian—that is, a person who does not fall into the category of combatant—must refrain from directly participating in hostilities. A civilian who violates that law and commits acts of combat does not lose his status as a civilian, but as long as he is taking a direct part in hostilities he does not enjoy—during that time—the protection granted to a civilian. He is subject to the risks of attack like those to which a combatant is subject, without enjoying the rights of a combatant, e.g. those granted to a prisoner of war. True, his status is that of a civilian, and he does not lose that status while he is directly participating in hostilities.⁴²

Violations of laws are a criminal matter, whether committed by combatants or civilians, and are properly the province of an appropriate court. The committing of a crime does not change a person’s status from combatant to civilian or civilian to combatant. During the Vietnam War, ‘a Vietcong was arrested while throwing a grenade into a downtown Saigon café and was handed over to the Vietnamese authorities for prosecution as a criminal’⁴³ Although this act was presumably motivated by the war, the person committing the act was, in fact, a civilian and was thus treated as a civilian, not a POW or any other ‘alternative’ category of person. To participate in hostilities without the right to do so is a violation of law. Practically, a civilian who attacks a combatant is guilty of the crime of murder, assault or similar.

Those found guilty of committing such crimes do not lose their civilian status and should be punished according to the law applicable to civilians.⁴⁴

Civilians are not lawful targets until they directly participate in hostilities. Any attack on civilians who are not participating in conflict is a crime punishable in accordance with IHL.⁴⁵ There is much ongoing discussion and debate about what constitutes ‘direct participation’ and the point at which this direct participation begins and ends. Whether civilians lose their immunity from attack only when carrying weapons en route to the attack and regain this protection when they arrive home and recommence farming the land is unclear.⁴⁶ What is clear, however, is that regardless of when this immunity from attack is lost and regained, these civilians retain their categorisation as civilians and their responsibility to abide by the laws applicable to civilians.

The application of this principle is particularly pertinent to the current conflict in Afghanistan. Insurgents and other criminal groups who fail to wear or display a fixed distinctive sign that is recognisable at a distance, carry their arms openly, or conduct their operations in accordance with the rule of law, are clearly not combatants and are thus civilians. This means that, while these civilians directly participate in hostile acts, they are violating Afghan law and committing crimes. As long as these civilians are participating in the conflict, they become legitimate military targets and lose their civilian immunity from attack. All other rights afforded to a civilian should be afforded to these criminals, including legal representation and appearance before an appropriate court. The uniqueness of the insurgent’s methods for committing criminal acts of murder, intentionally causing injury, making threats to kill and other similar offences, does not justify the creation of a new category of person. All these offences can, and should, be dealt with under existing Afghan domestic law.

Changing the status of people from civilian to combatant because of their engagement in criminal acts of belligerency potentially bestows on those people a level of legitimacy of which they are undeserving.⁴⁷ Furthermore, it changes the lawfulness of those acts and provides protection from prosecution that is not the intention of current international or domestic law. The act of belligerence means that a civilian may become the target of attack and may also be liable to prosecution for the commission of illegal acts; however, it does not entirely remove a person’s right to protection under Geneva Convention IV.⁴⁸ As in conflict-free zones, people reasonably suspected of committing an offence may be detained for questioning, investigated and ultimately punished should they be found guilty.⁴⁹

Compliance with the Law

The United States has argued that, while many countries use domestic criminal laws to deal with terrorists and insurgents, this is not possible in Afghanistan where the legal system is incapable of investigating, arresting and prosecuting these offences.⁵⁰ This is not a reflection of the existing law, but of the political will and of a dearth of technical knowledge and experience that can only be developed through appropriate training and time. This should not be used as an excuse, however, to deny people their legal rights or re-categorise them as something they are not.

At the same time as acknowledging that it was engaged in an armed conflict in Afghanistan, the United States recognised al-Qaeda as a criminal organisation, further baffling analysts as to why al-Qaeda’s members were not then treated as criminals.⁵¹ Terrorist groups, regardless of the wickedness of their acts, are not so far removed from the legal spectrum that they require a completely new system to govern their actions. Traditional laws are appropriate and suited to dealing with current threats and ongoing conflict. The purpose and motivation of IHL is not inconsistent with current desires to defeat terrorism and manage modern conflict.⁵² Terrorists,

... retain their status as civilians, but they lose the special protection of the law of armed conflict. This means that the law of armed conflict does not protect terrorists against legitimate military counter-terrorist measures, i.e. military measures, which are in accordance with the right to self-defence.⁵³

Conclusion

Current IHL is effective and comprehensive. The present system of two categories of persons—combatants and civilians—is capable of supporting both humanitarian and human rights imperatives while also maintaining the legitimate need for security and justice in the face of contemporary insurgency, terrorism and conflict. There is no need for new categories of persons to be created. As with any rules, procedures and laws, however, they are only as effective as their adherence and compliance.⁵⁴ IHL is no exception. All parties to conflict, especially those claiming to be morally virtuous, must ensure that IHL is properly implemented and obeyed. After all, the protection of human rights, the achievement and maintenance of security and the transition to peace with tomorrow’s neighbours remain paramount, particularly for those who are professional soldiers.

About the Author  Captain Dominic Bowen has a Masters of International Relations from Macquarie University and is completing a law thesis at the University of New South Wales focusing on the principle of distinction. As a civilian, he has served in various humanitarian missions in Pakistan, Iraq, Indonesia, Tonga, the Solomon Islands, Timor, northern Thailand and along the Thai-Burma boarder. He is currently deployed to Afghanistan with the Special Operations Task Group.

Endnotes

---

1     G Townsend, Campaigns of a Non-Combatant, Blelock & Company, New York, 1866, p. 11.

2     A Roberts, ‘Doctrine and Reality in Afghanistan’, Survival, Vol. 51, No. 1, 1 February 2009, Routledge, London, pp. 29-60.

3     For a summary of the difference between those laws governing the resort to force jus ad bellum, and those concerning the conduct of war jus in bello, see C Jochnick and R Normand, ‘The Legitimation of Violence: A Critical History of the Laws of War’, Harvard International Law Journal, Vol. 35, 1994, pp. 49–95.

4     Casey et al. correctly state that ‘the existence of armed conflict is sufficient to trigger the law of war and its rules for dealing with belligerents.’ See L Casey, D Rivkin and D Bartram, Unlawful Belligerency and its Implications Under International Law, 2003, <http://www.fed-soc.org/Publications/Terrorism/unlawfulcombatants.htm&gt; accessed June 2009. IHL and IHRL have complementary humanitarian aims and both should be taken into account. The Venice Commission believes that IHL and IHRL both apply during conflict: ‘Human rights law complements international humanitarian law, and together, both areas of law provide minimum standards of treatment for persons involved in armed conflict.’ See Venice Commission of the Council of Europe, ‘Possible Need for Further Development of the Geneva Conventions’, Guantanamo: Violation of Human Rights and International Law, Opinion No. 245 of the European Commission for Democracy through Law, Adopted by the Venice Commission at its 57th Plenary Session, 12–13 December 2003, ‘Points of View – Points of Law’ Collection, Council of Europe Publishing, Strasbourg, p. 95.

5     J Picket, Development and Principles of International Humanitarian Law, Martinus Nijhoff Publishers, Leiden, 1985, pp. 5–9. Picket illustrates the similarity between many ancient texts and recent laws and customs of war.

6     ‘The Geneva Conventions and the Additional Protocols are generally viewed as the core documents of international humanitarian law.’ See R De Nevers, ‘The Geneva Conventions and New Wars’, Political Science Quarterly, Vol. 121, No. 3, 2006, pp. 369-95. Another set of laws—the Laws of The Hague—governs lawful means and methods of waging war.

7     W Taft, ‘The Law of Armed Conflict After 9/11: Some Salient Features’, Yale Journal of International Law, Vol. 48, 2003, p. 319.

8     B Gokay and R Walker, 11 September 2001: War, Terror and Judgement, University of Keele, Frank Cass Publishing, London, 2003, p. 64.

9     Taft, ‘The Law of Armed Conflict After 9/11’, p. 319.

10    Not only is there no justification for the abuse and misinterpretation of IHL for political purposes, its misuse will ultimately weaken this body of law and endanger future generations involved in conflict. See H Gasser, ‘Acts of Terror, “Terrorism” and International Humanitarian Law’, International Review of the Red Cross, Vol. 84, No. 847, September 2002, p. 568.

50    Bellinger, ‘Legal Issues in the War on Terrorism’, p. 741.

51    Elsea, CRS Report for Congress: Treatment of ‘Battlefield Detainees’ in the War on Terrorism, p. 11, referring to a White House press statement made on 20 February 2002.

52    S Voneky, ‘Response – The Fight against Terrorism and the Rules of International Law – Comment on Papers and Speeches of John B Bellinger, Chief Legal Advisor to the United States State Department’, German Law Journal, Vol. 8, No. 7, 2007, p. 749.

53    Ibid., p. 752.

54    Venice Commission of the Council of Europe, ‘Possible Need for Further Development of the Geneva Conventions’, Guantanamo: Violation of Human Rights and International Law, Opinion No. 245 of the European Commission for Democracy through Law, adopted by the Venice Commission at its 57th Plenary Session, 12–13 December, ‘Points of View – Points of Law’ Collection, Council of Europe Publishing, Strasbourg, 2003, pp. 95–106.