Unlawful combatant" status

[Francisco Martin]

Prof. Wolff writes:

> Having raised the issue of “unlawful combatant” status in my last post,
I’d
> like to pose a question to Professor Martin, Professor Farnsworth, and
> others who have much more expertise in this area than I.  (My apologies,
> for this is a long post.)
>
> The meaning of “unlawful combatant” – that is, what type of legal
> designation it is – has been a matter of much confusion over the past
year,
> not just in the press but among academics, as well.  The following is my
> understanding of the manner in which that term has evolved.  I would be
> grateful if others could correct or supplement that understanding.
>
> The origin of the term, as I understand it, arises from an immunity from
> criminal prosecution that soldiers have come to enjoy under international
> law.   As the law of war evolved, a consensus developed that members of
the
> armed forces in a conflict should not be subject to criminal prosecution
> (and probable execution) when they are captured during hostilities, or
when
> their side loses.  Underlying this consensus was an understanding that the
> destructive acts of a soldier are “proper” in a state of war, so long as
> certain conditions are met; and also that granting a soldier immunity from
> retribution, so long as he conforms his behavior to agreed upon standards,
> is a good way to encourage both nations and individual soldiers to behave
> in a less destructive manner during wartime.
>
> Thus, provided that a soldier is part of an army with a command hierarchy
> (which encourages control in the use of force), wears recognizable
insignia
> and bears weapons openly (which protects civilians from collateral harm,
as
> they would otherwise be indistinguishable from combatants), and refrains
> from committing human rights abuses, he enjoys the status of “lawful
> combatant.”  That status entitles him to immunity from criminal
> prosecution.  If captured or defeated, a lawful combatant may be detained
> as a prisoner of war, but may not be put on trial.
>
> In contrast, if a soldier does not abide by the conditions above, then he
> loses the protection of “lawful combatant” status.  As I understand it –
> and this a key point – all that has meant under international law is that
> he may be criminally prosecuted for his actions (and also loses some
rights
> and protections during his detention as a prisoner of war). It has not
> meant, under international law, that the “unlawful combatant” loses the
> rights that would ordinarily apply in a criminal prosecution.  Rather, the
> loss of “lawful combatant” status permits a soldier to be treated as a
> civilian criminal (or, perhaps, a military criminal), if the capturing
> authorities so choose.  That loss of prosecutorial immunity, as I
> understand it, was key to the criminal indictment of Nazi war criminals at
> the Nuremberg Trials – an international tribunal that the U.S.
specifically
> authorized by statute and that provided the basic protections one would
> expect in a criminal trial, like the right to counsel, a presumption of
> innocence, and an impartial tribunal.
>
> In this respect, Ex Parte Quirin was a departure from governing standards
> of international law.  In that case (the sordid history of which we need
> not recount again), the saboteurs were unquestionably “unlawful
combatants”
> under international law.  But all this meant at the time was that they
> could be denied certain protections during their detention and that they
> could be criminally prosecuted for their attempted acts of destruction.
> The Quirin Court, however, went further.  It held that the German
> saboteurs, as “unlawful combatants,” were not only subject to criminal
> prosecution, they were subject to prosecution under standards that lacked
> basic due process protections and would not have been acceptable in either
> a civilian or military domestic prosecution.  In effect, the Court held
> that “unlawful combatants” not only lost their immunity from prosecution,
> but also lost their rights as criminal defendants.  That holding was
> unprecedented.  It was also in considerable tension with the Court’s
> earlier decision in Ex Parte Milligan, and was undercut by its decision
> four years later in Duncan v. Kahanamoku (the Hawai’i martial law case),
> which reaffirmed Milligan.
>
> Ex Parte Quirin remains the only authority for utilizing “unlawful
> combatant” status to strip captured soldiers of basic rights in a criminal
> prosecution.  It stands in tension with treaties such as the Geneva
> Convention, which do continue to use the “unlawful combatant” designation,
> but use it as originally conceived – indicating a loss of immunity from
> criminal prosecution in the ordinary course.
>
> There are a host of other issues that remain to be debated (e.g. the
> applicability of these designations to non-state terrorist organizations)
> and that I don’t intend to address here. But, is this a correct
explanation
> of the different in which the terms “lawful” and “unlawful combatant” have
> been used?

I think that you got it all right!  The problem has been the use of
"unlawful combatant" which is not the phrase used in the GCs or the Hague
Conventions. It was used in Quirin, a case that would now violate the US'
GC and ICCPR obligations.

Francisco Forrest Martin