Al-Qaeda & Taliban unlawful combatant detainees, unlawful belligerency, and the international laws of armed conflict

Air Force Law Review, Spring, 2004 by Joseph P. Bialke

If an opposing side is unable to differentiate between combatants who may legally engage in combat and protected noncombatant civilians who may not lawfully engage in combat, the opposing side might be tempted then to wrongfully and indiscriminately target everyone within an operational theater. A primary purpose of LOAC is to proactively stave off such desperate "cannot tell apart the enemy soldiers from the civilians, so shoot them all" criminal acts of reductionism. LOAC seeks to protect civilian populations by proscribing conduct that endangers such populations unreasonably, such as taking part in combat without wearing a distinctive uniform or other form of identification that is clear and visible at a distance. As stated earlier, the capturing party has the prerogative to deny such unlawful combatants POW status and some of its related benefits; and if applicable, try them for criminal acts of unlawful belligerency. (15) This is a balanced, time-honored, and practical method of encouraging compliance with LOAC.

5. Enforcement of LOAC

It is important to appreciate that all combatants captured in armed conflict are not equal and should not be treated in the same manner. To relax or merge the categories of lawful combatants and unlawful combatants is to step backwards, diminish the effectiveness of LOAC, and begin to retrogress the difference between civilization and barbarism. It is reasonable to conclude that individual lawful combatants would be less likely to join and fight alongside rogue unlawful combatants if there is universal international illegitimacy of such aligned conduct, subsequent lack of Geneva Convention III POW status upon capture, and the potential for punitive sanctions. Not conferring POW status to captured unlawful combatants such as al-Qaeda and Taliban fighters who do not merit such status (and other armed forces who mimic protected civilians perfidiously), however, is the primary and most meaningful way of retaining, reinforcing, and not diluting the extremely vital lawful/unlawful combatant and noncombatant distinctions that are so central to LOAC and its enforcement.

The pragmatic incentives not to endanger, and deterrents against endangering, protected noncombatants (particularly the civilian population) are only useful if other parties to the armed conflict consistently comply with, and enforce strictly the requisite distinctions contained within international law. Laws that are not enforced will not deter the armed forces of countries that do not have the propensity to otherwise adhere to such laws. The U.S. is committed to conducting its military operations in accordance with LOAC and, more specifically, to protecting civilians in armed conflict by preserving and enforcing the indispensable distinctions between lawful combatants, unlawful combatants, and noncombatants.

During WW II, for example, in ex parte Quirin, (16) the U.S. Supreme Court upheld the unlawful belligerency military commission convictions of eight German saboteurs, who disembarked German U-boats off the U.S. East coast, came ashore and discarded their military uniforms, and were later captured in civilian clothes in U.S. territory. Six of the unlawful combatants were then executed and the two remaining saboteurs were sentenced to and served lengthy terms of confinement. (17)