Noncombatant Prisoners Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

The term of noncombatant prisoner, while existing before, has expanded in meaning since September 11, 2001, and includes fighters not usually protected under international law. Noncombatant prisoners are typically not civilians but rather captured unlawful or illegal combatants or illegal enemy combatants—those who actively and willingly engage in fighting but do not follow all requirements for combatant status and therefore do not gain full rights of the Geneva Convention (GC) when captured. The term is contested and has not been formalized legally.

After the September 11th terrorist attacks, the idea of a new kind of war created a perceived need for new tools. Legal experts in the administration of U.S. president George W. Bush suggested that these attacks were not criminal acts but an armed conflict that required a response beyond traditional law enforcement. It was determined that under the 1949 GC (not signed by the United States), members of terrorist organizations like al-Qaida do not qualify as prisoners of war (POW). The presidential military order of November 13, 2001, classifies these fighters as unlawful combatants or illegal enemy combatants and, upon capture, as noncombatant prisoners. This decision was also applied to members of the Taliban, which had controlled Afghanistan and harbored al-Qaida prior to the U.S. invasion. It was argued that giving rights to illegal combatants could be seen as legitimizing terrorism as a just war tactic. The U.S. Military Commissions Act of 2006 gave the U.S. president broad discretion to determine the status of both al-Qaida and Taliban detainees. Since U.S. courts have no jurisdiction over enemy aliens outside U.S. sovereign territory, such as Guantánamo Bay, U.S. policy is controversial.

Critics see the U.S. war on terror being placed above international law. They are concerned about the potential for human rights abuses and question the correct application of the term noncombatant prisoner. Disagreement stems from different applications of jus in bello (law of armed conflict) and jus ad bellum (use of force). Armed conflicts exist when states (or national liberation movements) use and order violence against other states or movements to further their goals, even if they do not recognize each other’s status. Irregular forces are only considered state agents if a state sponsors, directs, and supervises them on a level similar to that of a national army. Jus ad bellum is contested and applies only with difficulty to individual cases. An attack must be credibly attributable to a state, and perpetrators must be armed state organs. Since the Taliban controlled about 90 percent of Afghan territory, it arguably exercised state powers. The United States, United Nations, and North Atlantic Treaty Organization (NATO) have invoked the right to self-defense since the September 11th attacks, and this stance may affect the concept of combatant. International law is now moving toward the granting of rights and obligations also to certain nonstate actors, in principle moving these fighters closer to combatant status and questioning U.S. policy.

The combatant-noncombatant distinction differentiates a soldier from a murderer. But difficulty in identifying combatants and their threat level have grown. To qualify for combatant and POW status, an irregular soldier must at a minimum openly carry arms or wear a recognizable sign. Guerrilla soldiers participating part-time in hostilities are combatants until fully demobilized. A combatant of a state participating in an armed conflict is protected from prosecution, except in the case of grave breaches. When the status is unclear, POW status is to apply until a competent tribunal decides on a definitive status. Legal suits have begun to challenge the current U.S. policy.

Bibliography:

Bethke Elshtain, Jean. Just War against Terror: The Burden of American Power in a Violent World. New York: Basic Books, 2003.
Bowler, David W. “Unwise Counsel: The War on Terrorism and the Criminal Mistreatment of Detainees in U.S. Custody.” In The Torture Debate in America, edited by Karen J. Greenberg. Cambridge: Cambridge University Press, 2006.
Carmola, Kateri. “The Concept of Proportionality: Old Questions and New Ambiguities. In Just War Theory: A Reappraisal, edited by Mark Evans, 93–113. New York: Palgrave Macmillan, 2004.
Fleck, Dieter, ed. Handbuch des humanitären Völkerrechts in bewaffneten Konflikten. Munich: C. H. Beck’sche, 1994.
Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War. Adopted August 12, 1949, by the Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims in War. Geneva, April 21 to August 12, 1949. www.unhchr.ch/html/menu3/b/92.htm.
Frostad, Magne. “Jus in bello after September 11, 2001:The Relationship between jus ad bellum and jus in bello and the Requirements for Status as Prisoner of War. The American journal of International Law 96, no. 4 (October 2002): 905–921.
Gilles, Andréani. “The ‘War on Terror’: Good Cause, Wrong Concept.” Survival 46, no. 4 (November 2004): 31–50.
Kaurin, Pauline. When Less Is Not More: Expanding the Combatant/ Noncombatant Distinction. In Rethinking the Just War Tradition, edited by Michael W. Brough, John W. Lango, and Harry van der Linden. Albany, N.Y.: SUNY Press, 2007.
O’Donovan, Oliver. The Just War Revisited. Cambridge: Cambridge University Press, 2003.
Protocol Additional to the Geneva Convention of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (AP1). Adopted June 8, 1977, by the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts. www.unhchr.ch/html/menu3/b/93.htm.
Third Geneva Convention Relative to the Treatment of Prisoners of War. Adopted August 12, 1949, by the Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims in War. Geneva, April 21 to August 12, 1949. www.unhchr.ch/html/menu3/b/91.htm.

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