TERRORISTS AS ENEMY COMBATANTS: An Analysis of How the United States Applies the Law of Armed Conflict in the Global War on Terrorism
NAVAL WAR COLL NEWPORT RI JOINT MILITARY OPERATIONS DEPT
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Commanders need to understand how the law of armed conflict applies to the various enemy forces they are likely to encounter while combating terrorism. Historically, terrorists have been regarded as bandits and held criminally responsible for their unlawful acts under domestic law. However, after the attacks on the World Trade Center and the Pentagon in September 2001, the U.S. decided to engage transnational terrorists in armed conflict. As enemy combatants, terrorists may be lawfully killed by virtue of their membership in the enemy group rather than their individual conduct. If a nations armed forces harbor or support terrorists, the facts will determine whether they are lawful or unlawful combatants. Lawful combatants are protected under the Geneva Convention Relative to the Treatment of Prisoners of War and entitled to specific privileges while captured. Unlawful combatants have no such rights. The President has considerable latitude in identifying, detaining, and punishing them. As U.S. forces engage terrorists and the states that harbor them, one should expect to encounter both lawful and unlawful combatants. Using Operation Enduring Freedom as an analytical model, this paper demonstrates the legal advantages of treating terrorists as enemies while highlighting the distinctions between lawful and unlawful combatants. Part I sets forth the legal framework for using armed force against Al Qaeda and the Taliban, and explains the advantages of treating terrorists as enemy combatants instead of criminals. Part II analyzes the Bush Administrations decision that neither Al Qaeda nor Taliban forces are lawful combatants, focusing on the criteria for lawful combatancy and the rules regarding detention and punishment. Careful study reveals that transnational terrorists will always be unlawful enemy combatants, but the issue is fact-dependent with regard to the armed forces of states that support terrorism. 33 refs.
- Government and Political Science
- Sociology and Law
- Unconventional Warfare