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

Even though the Taliban was not the legitimate nor the predominantly recognized government of Afghanistan, the U.S. stipulated that the Geneva Conventions would apply to Taliban combatants because Afghanistan is a signatory to the Geneva Conventions and the Taliban exercised de facto governance over most of the failed state of Afghanistan. (18) However, as the de facto government, the Taliban then bore responsibility for Afghanistan, the international obligations of Afghanistan to include LOAC, the Taliban's conduct, and the conduct of the Taliban armed forces. When the U.S. subsequently applied the lawful belligerency criteria of LOAC to the collective conduct of the Taliban and its armed forces, such conduct was determined to be unlawful.

2. The Four Criteria of Lawful Belligerency: Being commanded by a person responsible for his subordinates; Having a fixed distinctive sign recognizable at a distance; Carrying arms openly; and Conducting military operations in accordance with the laws and customs of war.

After reviewing the substantiated institutional policy and practice in armed conflict of an armed force that en masse willfully and egregiously fails to follow the four requirements of lawful belligerency in armed conflict, an opposing party may then designate administratively the armed force en masse as a class of unlawful combatants. As a result, the U.S. regards captured Taliban as unprivileged combatants whose unlawful actions as a group (as described below) have presumptively excluded them from Geneva Convention III POW status that is afforded to captured privileged lawful combatants who have subscribed to and honored the four criteria of lawful belligerency contained within LOAC. (19)

Because the Taliban as an entity does not meet the standards of lawful belligerency, and therefore as an entity lacks lawful combatant status and combatant's privilege, the U.S. accordingly considers captured individual Taliban members to also lack lawful combatant status and combatant's privilege, and as such has not extended to them POW status. Such classification of the Taliban as unlawful combatants is not "collective criminal punishment." It is, however, a factually accurate collective administrative determination. Correspondingly, nor is it "criminal guilt by association." It is, however, the lack of lawful belligerency status by association (coupled with the lack of combatant's privilege and, upon capture, POW status).

The term "unlawful combatant" is not mentioned in international treaties that regulate armed conflict, but it is implicit within them. (20) The Brussels Declaration of 1874, art. IX; (21) the 1899 Convention with Respect to the Laws and Customs of War on Land, Annex art. 1 ; the Hague Convention of 1907, No. IV, Annex art. 1; (22) and the Geneva Convention III of 1949, art. 4A, (23) all list the four fundamental conditions of lawful belligerency. The immutability and stalwart enforcement of these four categorical pillars of lawful belligerency are indispensable to the prevention of war crimes and to the safety of protected civilians and other noncombatants in international armed conflict. To an armed force in armed conflict, the four requirements of lawful belligerency are not discretionary.