Enemy Combatants, International Humanitarian Law, and the United States’ War on Terror

Abstract

Since the Hague Convention of 1907, International Humanitarian Law has contained detailed provisions regarding the humane treatment of prisoners of war. The Hague Convention also distinguishes between combatants, or belligerents, and civilians, using criteria which are found in the Third Geneva Convention of 1949. In this Convention, and according to subsequent commentators on International Humanitarian Law, combatants who meet certain requirements are entitled to prisoner of war status, and to the protections which the Convention extends to prisoners of war. The requirements that these fighters must fulfill in order to be considered combatants, and therefore, to be eligible for prisoner of war status include allegiance to a command belonging to a state party to the Convention, wearing a uniform, carrying arms openly, and carrying out operations in accordance with the laws and customs of war. As prisoners of war, captured combatants are immune from prosecution for such crimes as murder by the capturing power. By contrast, civilians who participate in armed hostilities while retaining civilian status are not entitled to this immunity, or to other protections that International Humanitarian Law extends to prisoners of war. The George W. Bush Administration came to categorize these civilian fighters that the U.S. had captured during its “War on Terror” in Afghanistan as “enemy combatants” who were not entitled to prisoner of war status. During the first years of the “War on Terror” (2002-2004), this designation generated extensive debate within U.S. courts regarding the concept of the “enemy combatant.” Specifically, this debate focused on the status of captured Taliban and Al-Qaeda fighters, their rights as detainees under the United States Constitution and the Third Geneva Convention, the precise definition of an “enemy combatant,” and the powers of the President to categorize these detainees as enemy combatants, and to confine these detainees in military facilities.