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International Law: The Existence of “Enemy Combatants”

The following is a paper on the existence of the classification “enemy combatant”. It analyzes the ramifications on an individual once they are classified an enemy combatant, and the international laws that pertain to the classification.  Please note that references are available upon request, and this paper does not necessarily reflect the view of U Be The Critic.com

Does the Classification “Enemy Combatant” Exist?

To determine whether the classification “Enemy Combatant” exists, this paper will analyse state practice, opinio juris, and treaty law.

A good indication of the world’s acceptance of a term is its presence in a dictionary. The English dictionary does not define “enemy combatant”. Its first appearance was in the dictionary of military and associated terms on 6 April 2004.

The Progression of the Definition
Two United States (‘US’) Supreme court cases, Hamdi v Rumsfeld, and Hamdan v Rumsfeld, accepted the US administration’s term “enemy combatant”. In 2002 both Yaser Hamdi and Salim Hamdan were classified as enemy combatants.

In 2006, the US Congress passed the Military Commissions Act (‘MCA’) giving the following definition of an “unlawful enemy combatant”:

“A member of a regular force, militia or volunteer corps of a state, or member of a regular armed force professing allegiance to a government which is NOT recognised by the US, and which is engaged in hostilities with the US.”

Lawful vs Unlawful Combatants in Treaty: The Geneva Convention (‘GC’)

Enemy Combatant is a term which is not expressly included in the GC or Hague Conventions. Article four of GC-3 recognizes and describes the categories under which an individual will be granted POW status as a “lawful combatant”. Those that fall under it benefit from the protections listed in the articles of GC-3.

The convention alludes to enemy combatants in GC-3 article 5. This article refers combatants to a “competent tribunal” for the assessment of their status. It is implicit from this article that there are combatants that are not “lawful”. The US employs military tribunals which make the determination as to whether an individual is an enemy combatant.

The International Committee of the Red Cross (‘ICRC’) has argued that all individuals fall under the GC-3 status of lawful combatant, or the civilian protections under GC-4 which address civilian rights during a time of war. This impliedly covers individuals are who are not “lawful combatants”, namely, unlawful and enemy combatants. The ICRC argues these individuals should be considered civilians and charged with war crimes.

State practice & Opinio Juris: United States of America

In Hamdi v Rumsfeld, Justice O’Connor defined an enemy combatant as:

“Part of, or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in armed conflict against the United States there.”

Since the ruling, US Military tribunals have classified Yaser Hamdi, Salim Hamdan, Jose Padilla, David Hicks, Omar Khadr and many others as “enemy combatants”.

The US Supreme Court accepted the validity of the classification, demonstrating opinio juris. This acceptance has allowed the definition to evolve and broaden. The court in Hamdan v Rumsfeld expanded the term by applying it to the Guantanamo Bay detainees.

The US has since designated over 600 detainees in Guantanamo bay as enemy combatants. The expanded definition included any Taliban or al Qaeda who engaged in hostilities against the US or coalition forces, as well as anyone who directly supported them.

The Taliban & al Qaeda

In relation to the current conflict with the Taliban and al Qaeda, “enemy combatant” includes a member, agent or associate of those groups. This definition developed from the US Supreme Court’s observations in Ex Parte Quirin.

“Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war.”

The US argues that the Taliban does not qualify for POW status because they are not the lawful government of Afghanistan. Al Qaeda was denied the GC’s protections because they are a terrorist group and not Afghani nationals. Both groups do not wear a distinctive sign or uniform, and lack command structure. They do not meet the requirements under article 4 of GC-3, and thus detained members are classified as enemy combatants.

Australia: David Hicks

David Hicks is a South Australian who was captured in Afghanistan in 2001 for Taliban involvement. He was detained by the US in Guantanamo Bay after being classified an “enemy combatant” by a military tribunal. He was the first person tried and convicted under the MCA. During his time in Guantanamo he alleges he was tortured, sexually abused, and interrogated using psychological and physical coercion. These allegations were all listed in an affidavit dated 5, August 2004, and all breach the Geneva Conventions.

Opinio Juris

The Australian government did not petition for Hick’s release when his status was still unresolved. Many believe there were political underpinnings to this decision. This could be an indication of opinio juris. The Australian government’s inaction, or acquiescence of Hicks’ classification as an “enemy combatant”, demonstrates an acceptance of the term’s validity, and a belief that there is a legal obligation on the country to abide by it.

This is controversial, as the Australians sent consular officials to meet with Hicks on several occasions, potentially to discuss commencing actions on his behalf. Hicks subsequently declined a visit from Australian consular officials because he had been punished on a previous occasion for speaking with Australian officials about the conditions of his detention.

Canada: Omar Khadr

A Canadian boy named Omar Khadr was captured by American forces at the age of 15 following his involvement in an attack on coalition forces in Afghanistan. He has been detained in Guantanamo Bay charged with war crimes for providing support to terrorism after allegedly throwing a grenade that killed a US soldier.

Opinio Juris

Khadr’s case appears to be one where the Canadians appear to accept the validity and legal obligations imposed by the American’s classification of Omar as an “enemy combatant”. The opinio juris is implied from the fact that Canada has refused to object to the classification, or seek the extradition or repatriation of Khadr despite the urgings of organizations like UNICEF, and the Canadian Bar Association.

It would seem as though the Canadian government agrees with the US’ classification of Khadr, and his detainment because it has recently been revealed that the Canadian government has spent up to 1.3 billion dollars to keep Khadr in Guantanamo Bay!

Recent Developments

President Obama has recently vowed to close Guantanamo Bay, and drop the term enemy combatant. On 13 March 2009, US Attorney General Eric Holder issued a statement that the United States had abandoned the Bush administration term “enemy combatant”:

“As we work toward developing a new policy to govern detainees, it is essential that we operate in a manner that strengthens our national security, is consistent with our values, and is governed by law.”

State Practice: Israel

The US is not the only country which has formally integrated “enemy combatant” into their law. In 2002, Israel created the “Imprisonment of Illegal Combatants Law” which also makes distinctions between lawful and unlawful combatants and their legal status.

Classification Ramifications

Ramifications for the Administration

When an individual has their humanitarian rights revoked by a country, that country should incur the wrath and scrutiny of other countries, and international law. The term “enemy combatant” was created to evade international scrutiny and the application of international law.

It acts as a shield for the US administration’s behaviour and treatment of their detainees. The classification allows the US to withdraw the rights and protections of detainees without breaching international law.

Former Attorney General John Ashcroft, and former White House Council Alberto Gonzales said the classification:

“Provides legal cover for administration from unlawful behaviour and war crimes.”
The removal of a detainee’s essential, guaranteed humanitarian rights is unlawful behaviour as it breaches many doctrines of international law. By classifying detainees as enemy combatants, the US has created its own immunity from the ramifications that would normally be imposed under international law.

Ramifications for the Individual: The Geneva Conventions

Detainees are granted humanitarian rights under the GC. Common article three, which is common to all four Geneva conventions requires detainees to be treated humanely. This prohibits:

a) violence to life and person, murder, mutilation, cruel treatment, torture,
b) taking of hostages,
c) outrages upon personal dignity, humiliating and degrading treatment, and
d) passing of sentences and carrying out executions without judgment.

The existence of the Geneva Conventions has not prevented the US from violating enemy combatant’s rights. It has been accused of treating enemy combatants with cruel, humiliating, degrading treatment and torture, all which violate Common Article three.

The ramifications of being classified as an “enemy combatant” are that the detainees do not receive the benefit of any of the above protections or guarantees, or POW status and the rights associated with it under GC-III. “Enemy combatants” are put in a position where international humanitarian law cannot protect their physical sanctity.

Habeas Corpus & Due Process

Not only do the individuals lose their rights to physical protection. The US Supreme Court ruled in Hamdi v. Rumsfeld that detainees are entitled to limited rights of due process. This differs from the trial rights afforded to POWs in GC-III.

Once classified as an enemy combatant, individuals can be locked up without a chance to prove their innocence. Individuals like David Hicks and Omar Khadr went before the Military Commission tribunal which did not provide them with the same rights as a domestic court.

In a military tribunal hearing, there is no presumption of innocence, evidence laws are not rigidly followed, and the process is not public. The tribunal operates using the inquisitorial process as opposed to the adversarial process. The judges are military officers who also perform the role of jurors, and often are not independent and impartial.

A Real Example: American State Practice

Yaser hamdi is an American citizen who was captured on the battlefield in Afghanistan. In 2002, the US classified Hamdi as an “enemy combatant” and transferred him to Guantanamo Bay. Upon learning that he was an American citizen, he was transferred to a naval brig in South Carolina where he was held for over two years incommunicado, in solitary confinement, often in complete sensory deprivation.

He was denied access to his family, lawyers, and Habeas Corpus. The ramifications for Hamdi of being classified an “enemy combatant” were profound. He lost his Geneva Convention rights and the basic constitutional rights which are granted to all Americans.

He was held without any charges being filed against him, and did not get tried within a reasonable time. He had no access to lawyers or to the domestic American legal system. These actions are breaches of the GCs, human rights law, and domestic constitutional law. It would seem that those who commit mass murder on American soil retain more rights than an “enemy combatant” whose allegations have yet to be proven.

Applicable International Human Rights Law

Enemy combatants are not entitled to the protections of GC-III. However, there is an international humanitarian law doctrine that may apply to them. The additional protocols to the GC will apply universally to all individuals regardless of their status.

Additional Protocols

Over 160 countries signed and ratified the two additional protocols to the Geneva Convention. The US signed them, but did not ratify them. Regardless of this, worldwide acceptance, state practice and opinio juris make the provisions binding on all nations as customary international law.

The protocols confirm that the Geneva Conventions were intended to define all detained combatants as either those entitled to POW status, or civilians. Article 45 says all captured combatants are presumed to be POWs until determined otherwise.

The most important part lies in the third paragraph of article 45, which says anyone that is not entitled to POW status receives the protections outlined in article 75.

First Additional Protocol: Article 75

This article provides fairness and humanitarian protection for those who don’t get the privileges and protections provided by the other sections of the GC. This includes enemy combatants.

Article 75 provides rights to due process which can be found in most common law jurisdictions. Impartial trials, the presumption of innocence, the right to counsel, and other standard trial rights are guaranteed.

The individuals are guaranteed humane treatment in all circumstances. There are prohibitions against violence to mental or physical health. Corporal punishment, mutilation, outrages against dignity, humiliation, degradation, and threats to commit above are prohibited.

Four of the justices in Hamdan v Rumsfeld confirmed that the US recognizes the universality of article 75. Worldwide and American judicial recognition and the force of customary international law require the US to guarantee the protections in article 75 to enemy combatants.

The international humanitarian laws discussed provide rights to individuals at times of war. There are international human rights law doctrines that apply to all individuals at all times, including those which the US classifies as enemy combatants.

The International Covenant on Civil and Political Rights (‘ICCPR’):

The United States has ratified the ICCPR. The United Nations Human Rights Committee suggested that all signatories to the ICCPR are obliged to provide the protections within it to all persons whom the country has effective control over. Detained individuals classified as enemy combatants fall under this category.

The ICCPR is customary international law and thus has universal application. This means that enemy combatants are protected by the ICCPR regardless of the classification.

The ICCPR provides that individuals are to be tried without undue delay, and that they should not be subjected to cruel, inhumane, degrading treatment or punishment.

Regardless of the clear prohibitions, the US held Yaser Hamdi without trial for an extended period, and he has testified that while in US custody he was subjected to cruel and inhumane treatment.

The Convention against Torture (‘CAT’)

Much like the ICCPR, the US has ratified the CAT. As a signatory to the CAT, the US is obliged not to torture their detainees, regardless of whether they have been classified as enemy combatants.

Compliance with this convention is also universal. Regardless of this fact there have been allegations of the US torturing “enemy combatants” like David Hicks.

United Nations Universal Declaration of Human Rights

The Universal Declaration of Human Rights was created by the UN General Assembly. It exists within the International Bill of Human Rights, which has adopted many fundamental freedoms and basic human rights. In 1976 after the covenants had been ratified by a sufficient number of nations, the Bill took on the force of international law.

The Declaration has provisions which mirror the ICCPR and the CAT, by prohibiting cruel, inhumane, degrading treatment, torture, as well as arbitrary arrest and detention.

The declaration is not a treaty itself, but it is binding on all United Nations member states. It forms a part of customary international law. Those who breach its articles can be pressured by other countries both morally and diplomatically to abide by it.

The Relationship Between Humanitarian and Human Rights Law

International Humanitarian Law

International humanitarian law covers the laws and customs of war and armed conflict. It is comprised of the Geneva and Hague Conventions, and treaties, case law, and customary international law.

The ICRC is humanitarian law’s controlling authority. It is an impartial, neutral, and independent organization with a humanitarian focus on assisting and protecting the lives and dignity of victims of war and violence.

International human rights law

International human rights law is a system of laws, both domestic regional and international, which promote human rights. The ICCPR, CAT, and Universal Declaration of Human Rights are included, along with other international human rights treaties and jus cogens.
Human rights law is enforced by the United Nations, and via universal jurisdiction. Any nation is authorized to prosecute and punish violations of human rights regardless of where they occur.

Powers Combined
International humanitarian and human rights law are distinct bodies of law, but complement one another. Together, they provide individuals with a blanket of essential rights and protections at all times. When a breach occurs, the United Nations, the ICRC, or other countries can take action to bring offenders to justice.

*References available upon request

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Posted by on July 14, 2010.

Categories: International Law, Politics, The Law

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