Unlawful Combatants Before 9/11

On occasion, I’ve heard it mentioned that the category of “unlawful combatants” – employed of late by the Bush Administration when categorizing & detaining captured terrorists (real or alleged) – is a novel, post-9/11 invention concocted by said Administration.  AFAIK, this position is incorrect.  Having nothing better to do this Good Friday evening, I did some text searching, and came across the many pre-9/11 uses of “unlawful combatant” I’ve reproduced below.  It would appear, therefore, that the term “unlawful combatants”, and the concept it denotes, far predates Bush, 9/11, and indeed Al Qaeda. 

The earliest uses of “unlawful combatant” that I came across was the Supreme Court decision in the so-called “Nazi saboteur case,” Ex Parte Quirin:[1] 

By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.[2]

Soon after that decision was announced, law reviews carried articles discussing it.  For example: 

There is an important distinction which is decisive in this case, and it concerns lawful and unlawful combatants.  Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces.  Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.[3] 

The term was next used in reference to discussions of guerrilla forces: 

… At the outset it must be noted that the term “guerrilla”…is used…to include both lawful and unlawful combatants.  ….

Illegal guerilla or irregular warfare may be divided into two principal classes…second, where it is conducted by individuals or small band, which do not conduct their operations according to the laws of war. … Under the 4th clause of Article 1 of the Hague Regulations, these irregulars are unlawful combatants….[4]

Again: 

The legal status of persons listed consequent a state of war or armed conflict of non-international or international character are as follows: 

(a) Military persons – are combatants and are subject to treatment as POW if captured.

(j) Rebels and insurrectionists, armed or seditious bands – are non-privileged or unlawful combatants.  They may be subject to trial for criminal acts.  It is to these persons that common Article 3 of the 1949 Geneva Conventions concerning conflicts not of an international character is applicable.[5]

And again: 

… Article 5 of Geneva Convention III, 1949, provides that only a competent tribunal may determine the status of persons accused of being unlawful combatants.[6]

And again: 

In the view of the Tribunal the status of a partisan should be judged on the basis of the Hague Regulations: if their conditions are fulfilled, there exists a lawful combatant, in other cases an unlawful combatant.  The Tribunal found that the partisans in question had, as a rule, acted as “unlawful belligerents”.  They did not have the right to the status of prisoner of war.  They were, in other words, “franc-tireurs”, and as such could be executed, but however, only after trial and judgement.[7] 

And again: 

… The Prisoners of War Convention is not applicable to a resistance fighter who does not fulfill these conditions [of having a chain of command, fixed distinctive sign, carrying arms openly, & obeying the laws of war] and this probably applies to the majority of guerrilla fighters.  Such an “unlawful” combatant can thus not qualify for treatment as prisoner of war….[8] 

And again: 

Unlawful combatants are those individuals not authorized to take a direct part in hostilities but who do so.  The term also refers to otherwise authorized combatants who fail to comply with requirements for fixed, distinctive signs and noncombatants who improperly used their protected status as a shield to engage in hostilities.[9] 

The term was also used to refer to pirates & others using armed force for private gain: 

… Pirates at sea and marauders on land, acting for personal purposes or private gain, have always been unlawful combatants.[10] 

It also surfaced in discussions of mercenaries: 

… The restraint or elimination of the unprivileged combatant in order to make it impossible for him to further fight the detaining power appears to be the primary reason for declaring individuals unprivileges or unlawful combatants.[11] 

Again: 

Making a distinction between privileged and non-privileged belligerents serves to determine whether belligerents are entitled to combatant status from which derives the right to Prisoner of War (P.O.W.) status, or, as unlawful combatants, are deprived of the protection guaranteed by the laws of war.[12] 

The term also crops up in a 1985 discussion of POW status: 

Lawful combatants are those who, belonging to a lawful armed group, have the individual right to participate in hostilities and are, therefore, entitled to combatant status as individuals.  In case of capture they are entitled to prisoner-of-war status which carries with it immunity from prosecution for the mere participation in hostilities or the performance of acts of war, such as killing or destruction of property.  Conversely, unlawful combatants are those who have no right to participate in hostilities, such as persons belonging to unlawful armed groups, or individuals fighting on their own.  Unlawful combatants are also previously lawful combatants who have lost their status as such because of particular activities.  Only lawful combatants are entitled to prisoner-of-war status.[13] 

It was eventually applied in a discussion of terrorism…in 1988: 

Most terrorist groups do not carry out their activities in conformance with the definition of legal combatant, thereby rendering the captured terrorist an unlawful combatant.  But this does not mean that the Geneva Convention cannot apply, only that it is within the discretion of the detaining nation as to whether to abide by the Convention in connection with the terrorist’s detention.[14] 

Again: 

[U]nlawful combatants, such as those who during war secretly and witout uniform cross military lines in order to kill or destroy property, are not entitled to be treated as prisoners of war.  But they are still subject to trial and punishment by military tribunal.  Applying these classifications to terrorists, most would be deemed unlawful combatants.  Thus the crimes for which they may be tried need not be classified as war crimes.[15]  

A 1991 article noted one downside of “unlawful combatant” status for those so designated: 

[T]he killing of lawful combatants in violation of the laws and customs of war would, in most circumstances, constitute a war crime; the killing of unlawful combatants, such as members of resistance groups not complying with the requirements of lawful belligerency, might not.[16]

A 1996 article contained the following paragraph under the heading, “C.  Unlawful Combatants”: 

Another manner in which terrorism violates the laws of war-even if directed toward military personnel or installations-relates to certain requirements promulgated by international law for the outward identification of combatants. In violation of those requirements, the perpetrators of the recent terrorist attacks were neither members of a duly constituted and organized national military force, wearing uniforms or other distinctive insignia, nor bearing arms openly.[17]

Another article published that year employed the term in relation to MOOTW: 

Military operations other than war frequently present scenarios in which United States forces encounter persons who do not qualify for legal status as prisoners of war. In Panama, Somalia, and Haiti, for example, persons captured after having committed hostile acts against United States forces were not entitled to legal status as prisoners of war. … In Somalia, for example, United States forces were confronted by armed civilians who fought with impunity as unlawful combatants.[18]

Another MOOTW-related article employed the synonym, “unlawful belligerent”: 

The final source of support for the proposition that the law of war includes a “force protection” principle is derived from the traditional prohibition against “unlawful belligerents.” During past conflicts, states have used this prohibition as the basis to prosecute and punish enemy nationals, not qualifying as members of the enemy armed forces, who attempted to take or took hostile acts against the state or its armed forces. The classic example of an “unlawful belligerent” is the enemy saboteur who, without qualifying for status as a combatant, infiltrates friendly areas with intent to cause harm to the force. International law has long recognized the right of a state to punish these individuals as unlawful belligerents.[19]

The term was also used in relation to civilian contractors working with military forces: 

Civilian employees who remain in theater or mobilize with deploying forces are somewhat unique and raise interesting issues that challenge this traditional distinction between combatants and noncombatants. Although they may be legally present in a theater of operations in support of combat operations, they are not entitled to fire weapons at the enemy like a combatant. If they do, they may be treated as an unlawful combatant or an “unprivileged belligerent” under the laws of war. …. They may be issued small arms to protect themselves from enemy violations of the laws of war, but may not violently resist capture by the enemy. …[I]f captured, [they] are entitled to prisoner of war status like a combatant under Article 4A(4) of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War.[20]

Another example anticipates Gary Solis’ usage[21] of the term by a decade: 

Once civilian technicians or contractors become involved as “operators” in “combat operations”, they risk being characterized as “unlawful combatants” under international law. This has a number of consequences, including the possibility that, if captured these civilians can be tried and punished for their hostile acts, to include the same things for which a uniformed combatant would have immunity. It is very doubtful that many of these “surrogate warriors” are cognizant of their new status or comprehend the ramifications of it.[22]

The last pre-9/11 example I could find echoed the first: 

…[A] final important category, “unlawful combatants” applies to those non-combatants and civilians who are unauthorized to engage in hostilities, but do so nonetheless. These individuals lose the protection they would otherwise enjoy under the laws of war. As the 1977 Protocol (I) to the Geneva Convention recognizes, unlawful combatants do not lose all humanitarian protections,203 but they are not accorded “prisoner of war” status if captured, and they face lawful penal consequences by the foreign belligerent State for their unlawful participation in the conflict.[23]

It’s worth comparing the above usages with the following excerpt from a recent article co-authored by John Yoo on the topic of “unlawful combatants”: 

Taken together, these four conditions [listed in Article 4(A)(2) of the Geneva Convention relative to the Treatment of Prisoners of War, i.e., “being commanded by a person responsible for his subordinates;” “having a fixed distinctive sign recognizable at a distance;” “carrying arms openly;” and “conducting their operations in accordance with the laws and customs of war”], aimed at facilitating the bedrock customary distinction between combatants and civilians, also establish a second fundamental distinction under customary law: the distinction between lawful and unlawful combatants. Only lawful combatants – that is, members of fighting units that comply with all four conditions – are licensed to engage in military hostilities. The customary laws of war immunize only lawful combatants from prosecution for committing acts that would otherwise be criminal under domestic or international law.”? And only those combatants who comply with the four conditions are entitled to the protections afforded to captured prisoners of war under the laws and usages of war. Indeed, denial of protected status under the laws of war has been recognized as an effective method of encouraging combatants to comply with the four conditions. Unlike lawful combatants, unlawful combatants have no right to engage in hostilities and enjoy no immunity from prosecution for their military activities, nor do they receive the protections afforded under the laws of war to captured prisoners of war. And, of course, unlawful combatants-unlike civilians, and like combatants-are vulnerable to direct attack and targeted military hostilities, as common sense would clearly dictate.[24]

 


[1] 317 U.S. 1 (1942). 

[2] Id. at 30-31. 

[3] Recent Cases, 17 TEMP. L.Q. 189, 2002 (1943). 

[4] Roger W. Barrett & Lester Nurick, Legality of Guerrila Forces under the Laws of War, 40 AM. J. INT’L L. 563, 569-570 (1946).   

[5] Fred K. Green, The Concept of War and the Concept of Combatant in Modern Conflicts, 10 MIL. L. & L. WAR REV. 267, 280 (1971); also id. at 281 (“The various categories of non-privileged or unlawful combatants may be retained within the jurisdiction for criminal trial and resulting punishment.”). 

[6] Luis Kutner, Due Process of Rebellion, 7 VAL. U.L. REV. 1, 40 (1972).  

[7] Esbjorn Rosenblad, Guerrilla Warfare and International Law, 12 MIL. L. & L. WAR REV. 91, 102 (1973). 

[8] Id. at 120.  

[9] Matt C. C. Bristol, III, CRAF: Hawks in Doves’ Clothing?, 20 A.F. L. REV. 48, 59 (1978). 

[10] Law of War Panel: Directions in the Development of the Law of War, 82 MIL. L. REV. 3, 29 (1978). 

[11] Arthur J. Armstrong, Mercenaries and Freedom Fighters: The Legal Regime of the Combatant under Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 30 JAG J. 125, 171 (1978). 

[12] Tahar Boumedra, International Regulation of the Use of Mercenaries in Armed Conflicts, 20 Mil. L. & L. War Rev. 35, 39 (1981). 

[13] Nissim Bar-Yaacov, Some Aspecets of Prisoner-of-War Status According to the Geneva Protocol I of 1977, 20 ISR. L. REV. 243, 250 (1985). 

[14] Jeannemarie Gardes, Terrorists on Trial: The Legal Dilemmas, 11 CRIM. JUST. J. 235, 258 (1988) (footnote omitted). 

[15] Id. at 259 (footnotes omitted). 

[16] Andrew J. Cunningham, To the Uttermost Ends of the Earth – The War Crimes Act and International Law, 11 LEGAL STUD. 281, 285 (1991) (footnotes omitted). 

[17] Spencer J. Crona & Neal A. Richardson, Justice for War Criminals of Invisible Armies: A New Legal and Military Approach to Terrorism, 21 OKLA. CITY U.L. REV. 349, 364 (1996) (footnotes omitted).  Interestingly, this article also advocated trying terrorists via military commission.  See id. at 366-399. 

[18] Marc L. Warren, Operational Law–A Concept Matures, 152 MIL. L. REV. 33, 58 (1996) (footnote omitted). 

[19] The Judge Advocate General’s School Faculty, TJAGSA Practice Notes, 1999 ARMY LAW. 1, 13-14 (footnotes omitted). 

[20] Deployment of Civilians in Support of Military Operations, 24 REPORTER 22, 23 (1997).  The claim that civilians captured as unlawful combatants are entitled to POW status is in apparent contradiction with the other sources cited in this post.  It’s possible that the aforementioned claim intends to reference unlawful combatants’ entitlement to the standards of treatment embodied in Common Article 3 of the Geneva Convention. 

[21] Gary Solis, CIA drone attacks produce America’s own unlawful combatants, WASH. POST,  Mar. 12, 2010, at A17, available at http://www.washingtonpost.com/wp-dyn/content/article/2010/03/11/AR2010031103653.html (“In terms of international armed conflict, those CIA agents [who arm and pilot armed unmanned drones] are…unlawful combatants. No less than their insurgent targets, they are fighters without uniforms or insignia, directly participating in hostilities, employing armed force contrary to the laws and customs of war.”). 

[22] Charles J. Dunlap, Jr., Organized Violence and the Future of International Law: A Practitioner’s View of the Emerging Issues, 93 AM. SOC’Y. INT’L L. PROC. 6, 12 (1999) (footnotes omitted). 

[23] Robert A. Ramey, Armed Conflict on the Final Frontier: the Law of War in Space, 48 A.F. L. REV. 1, 49 (2000) (footnote omitted). 

[24] James C. Ho & John C. Yoo, The Status of Terrorists, 44 VA. J. INT’L L. 207, 221-222 (2003) (footnotes omitted).

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