John Yoo – International Law and the War on Terror
This paper will identify and discuss two legal questions raised by the war on terrorism that have generated significant controversy among academics and public commentators. First, did the September 11, 2001 attacks initiate a war, or “international armed conflict” to use the vocabulary of modern public international law? Second, what legal rules govern the status and treatment of members of the al Qaeda terrorist network and the Taliban militia that harbored and supported them in Afghanistan? In short, the United States government has concluded that the attacks of September 11 have placed the United States in a state of armed conflict, to which the laws of war apply. It has also determined that members of the al Qaeda terrorist network and the Taliban militia are illegal combatants under the laws of war, and so cannot claim the legal protections and benefits that accrue to legal belligerents, such as prisoner of war status under the Third Geneva Convention of 1949.
Critics of the administration’s actions in the war on terrorism take a very different approach to matters. First, some believe that the September 11 attacks were not the initiation of an armed conflict, but merely the latest eruption of a persistent social problem. Under this theory, the war on terrorism is no different than the war on drugs, and the former should be addressed by the same legal rules as the latter: those of domestic and international criminal law. Second, many critics have argued that if the laws of war apply to the conflict with al Qaeda and the Taliban, then they must be given the legal status of lawful belligerents, with all of the rights and privileges under the Geneva Conventions and the laws of war that attach.
Decision of these questions has important implications for the war on terrorism. If, for example, September 11, 2001 was a crime and not war, then the laws of armed conflict do not apply to the actions of the United States and its allies against al Qaeda and the Taliban militia. That might mean, for example, that it is illegal under international law for the United States actually to use force against members of al Qaeda and the Taliban unless in self-defense, and that in general government authorities can only resort to arresting members of terrorist organizations when they have sufficient evidence of probable cause to believe they have violated a criminal law in the past. It might mean that captured terrorists could invoke Miranda rights to remain silent and demand a lawyer, rather than be interrogated for information that could lead to the prevention of future terrorist attacks. If al Qaeda and Taliban members are legal combatants, they could claim combat immunity for any deaths or destruction they have caused. Similarly, status as legal combatants would entitle al Qaeda and Taliban members to the legal status of prisoners of war under the Third Geneva Convention. This would require them to be housed in open barracks, where they would have, for example, the right to cook their own food and exercise together, rather than to be housed in the more secure individual units at Guantanamo Bay.
On September 11, 2001, four coordinated terrorist attacks took place in rapid succession, aimed at critical government buildings in our nation’s capital and the heart of our national financial system. Terrorists hijacked four airplanes. One crashed into the Pentagon in Arlington, Virginia and two into the World Trade Centers in New York City. The fourth, which was headed towards either the White House or Congress in Washington, D.C., crashed in Pennsylvania after passengers apparently attempted to regain control of the aircraft. The attacks caused about three thousand deaths and thousands more injuries, disrupted air traffic and communications within the United States, closed the national stock exchanges for several days, and caused damage that has been estimated to run into the billions of dollars. The President has found that these attacks are part of a violent terrorist campaign against the United States by groups affiliated with al Qaeda. Other al Qaeda-linked attacks against the United States prior to September 11 include the suicide bombing of the U.S.S. Cole in 2000, the bombing of American embassies in Kenya and Tanzania in 1998, the attack on a U.S. military housing complex in Saudi Arabia in 1996, and the bombing of the World Trade Center in 1993. Al Qaeda continues its terrorist campaign against the United States and its allies and interests abroad to this day. It is believed to have been responsible for, or connected with, numerous terrorist incidents following September 11, including the December 2001 attempt by al Qaeda associate Richard Colvin Reid to ignite a shoe bomb on a transatlantic flight from Paris to Miami, an April 2002 explosion at a synagogue in Djerba, an October 2002 explosion on a French oil tanker off the Yemeni coast, a series of bombs on the
Indonesian resort island of Bali that same month, and two attacks on Israeli targets in Kenya in November 2002. In response, the federal
government has engaged in a broad effort at home and abroad to counter terrorism. Pursuant to his authorities as Commander-in-Chief and Chief Executive, the President in October, 2001, ordered the United States military to attack al Qaeda personnel and assets in Afghanistan, and the Taliban militia that harbored them. That military campaign, although continuing to this day, has achieved significant success, with the retreat of al Qaeda and Taliban forces from their strongholds and the installation of a friendly provisional government in Afghanistan. Congress provided its support for the use of force against those linked to the September 11 attacks, and has recognized the President’s constitutional power to use force to prevent and deter future attacks both within and outside the United
One of us has argued elsewhere that the President has the constitutional power to use force unilaterally in response to the September 11 attacks. The Justice Department and the FBI have launched a sweeping investigation in response to the attacks, and in fall, 2001, Congress enacted legislation to expand the Justice Department’s powers of surveillance against terrorists. By executive order, the President created a new Office for Homeland Security within the White House to coordinate the domestic program against terrorism. Congress subsequently enacted the President’s proposal to establish a new cabinet-level Department of Homeland Security, which consolidates 22 previously disparate domestic
agencies into one department in order to better protect the nation against security threats.
There is little disagreement with the conclusion that if the September 11 attacks had been launched by another nation, an armed conflict under international law would exist. The September 11 attacks were a “decapitation” strike: an effort to eliminate the civilian and military leadership of the United States with one stroke. In addition to killing the nation’s leaders, al Qaeda sought to disrupt the economy by destroying the main buildings in New York City’s financial district. The attacks were coordinated from abroad, by a foreign entity, with the primary aim of inflicting massive civilian casualties and loss. Al Qaeda executed the attacks not in order to profit, but to achieve an ideological and political objective – in this case, apparently, changing U.S. foreign policy in the Middle East. Indeed, the head of al Qaeda, Usama bin Laden, declared war on the United States as early as 1996. Finally, the scope and the intensity of the destruction is one that in the past had only rested within the power of a nation-state, and should qualify the attacks as an act of war.
President Bush has found the attacks to constitute an attack that has placed the United States in a state of armed conflict. In his
November 13, 2001 order establishing military commission to try terrorists, the President found that:
International terrorists, including members of al Qaida, have carried out attacks on United States diplomatic and military personnel and facilities abroad and on citizens and property within the United States on a scale that has created a state of armed conflict that requires the use of the United States Armed Forces.
As a matter of domestic law, the President’s finding settles the question whether the United States is at war. In The Prize Cases, the Supreme Court explained that it was up to the President to determine that a state of war existed that warranted, in regard to the southern States, the “character of belligerents.” The judiciary, the Court noted, would be bound by the President’s determinations in evaluating whether the laws of war applied to the blockade he had instituted:
Whether the President in fulfilling his duties, as Commander-inchief, in suppressing an insurrection, has met with such armed
hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted. . . . The proclamation of blockade is itself official and conclusive evidence to the Court that a state of war existed . . . .
President Bush is far from alone in his determination that the United States may lawfully use lethal or lesser degrees of military
force in these circumstances. In enacting Public Law Number 107-40, authorizing the President to use military force in response to the
attacks of September 11Congress found that the United States would be justified in the use of force against al Qaeda as a matter of self defense.15 In addition, various international bodies, such as the North Atlantic Treaty Organization (NATO),16 the Organization of American States (OAS),17 and the remaining parties to the ANZUS pact have all found that the September 11 attacks activated the mutual self-defense clauses of their treaties involving the United States.
In light of these judgments, the question remains whether it makes sense to treat the September 11, 2001 attacks as a massive crime, rather than a war, despite the scope of the damage caused and the purposes behind the attacks. Perhaps the critical question for determining whether the laws of armed conflict apply here is whether the terrorist attacks were a sufficiently organized and systematic set of violent actions that they crossed a sufficient level of intensity to be considered “armed conflict.” There can be no doubt that, whatever the “level of intensity” required to create an armed conflict, the gravity and scale of the violence inflicted on the United States on September 11 crossed that threshold. To use the words of the 1996 Amended Protocol II to the 1980 UN Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons, which provides one guidepost for determining when an armed conflict exists, the attacks are not properly likened to mere “riots, isolated and sporadic acts of violence and other acts of a similar nature,” which, according to that convention, do not constitute “armed conflict.” Rather, as explained above, the terrorists have carried on a sustained campaign against the United States, culminating on September 11 with a devastating series of coordinated attacks resulting in a massive death toll.
In addition, the United States has determined that it is necessary to respond to the attacks with military force. That decision is significant because one element often cited for determining whether a situation involving a non-state actor rises to the level of an “armed conflict” (for example, for purposes of common article 3 of the Geneva Conventions) is whether a state responds with its regular military forces. The United States has adopted this position in the past. Here, this criterion is overwhelmingly satisfied. As outlined above, the United States has found it necessary to respond with a massive use of military force. The war in Afghanistan and ongoing military actions in other regions of the world establish that the situation here involves an armed conflict for purposes of international law.
Some believe, however, that war is only an armed conflict that occurs between states. Since al Qaeda is not a state, the reasoning goes, there can be no armed conflict and no application of the laws of war. To the extent this approach relies on the syllogism that, if a conflict is not between states it cannot be “war” and therefore the laws of war cannot apply, the conclusion is contradicted by the terms of the Geneva Conventions and consistent international practice. A provision common to all four Geneva Conventions, for example, creates certain minimum standards of treatment of prisoners of war and civilians that apply “[i]n the case of armed conflict not of an international character” occurring within the territory of a Party. This provision specifically applies certain laws of war to conflicts that are not between two states, but occur solely within a single state between contending parties. Later international agreements have further made this clear by specifying what the laws of war do not apply to. The 1996 Amended Protocol II to the 1980 UN Convention on Prohibitions or Restrictions on the use of Certain Conventional Weapons (to which the United States is a party), for example, explains that it does not apply to “internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature,” because these are not “armed conflicts.” These provisions make it plain that the laws of armed conflict may apply to more intense levels of hostilities conducted by a non-state actor. They also illustrate that the trigger for applying these requirements is the crossing of a certain threshold of violence. Thus, it has long been recognized that formal concepts of “war” do not constrain application of the laws of armed conflict and that non-state actors are properly bound by certain minimum standards of international law when they engage in armed hostilities.
It is true that some international legal authorities have commented that war “must be between States.” In making that assertion, however, authors such as Oppenheim were suggesting only that for a conflict to be legitimate warfare it must be between states. It does not follow from that proposition that, if there is a conflict that amounts to warfare and non-state actors are involved, none of the rules of armed conflict apply. To the contrary, as Oppenheim recognized, a different conclusion follows – namely, that non-state actors who engage in warfare are engaged in a form of warfare that is illegitimate. In other words, al Qaeda terrorists do not escape the laws of war because they are non-state actors. Instead, they are unlawful belligerents.
Finally, it is worth examining the incentive that would be created by defining the September 11 terrorist attacks only as crimes, rather
than as acts of war. In the past, usually only a sovereign or quasi-sovereign entity with authority over a substantial territory could have
the resources to mount and sustain a series of attacks of sufficient intensity to reach the level of a “war” or “armed conflict.” The terrorist network now facing the United States has found other means to finance its campaign while operating from the territory of several different nations at once. Indeed, as we have witnessed subsequent to September 11, 2001 – al Qaeda’s fielding of forces on the battlefield in Afghanistan; its efforts to develop or acquire weapons of mass destruction – terrorist organizations such as al Qaeda have now acquired the military power that once only rested in the hands of nation-states. That change, however, cannot be considered to somehow exempt terrorist networks from the standards demanded by the laws of armed conflict. Simply by operating outside the confines of the traditional concepts of nation-states, terrorists cannot shield themselves from the prohibitions universally commanded by the laws of armed conflict. If terrorists can wield the military power of a nation state, but are exempted from the laws of war, other groups with similar aims will be encouraged to follow the example of al Qaeda. International law does not and should not create such a perverse incentive.
Although the laws of war may apply to the conflict with al Qaeda, that does not automatically mean that al Qaeda members are entitled to the privileges and benefits of the laws of war. This part will discuss why the members of al Qaeda and the Taliban militia are not legally entitled to the status of prisoners of war under GPW, and are instead illegal combatants.
The case of al Qaeda members is relatively straightforward, that of the Taliban less so. Al Qaeda is not a nation-state, and as such cannot be a state party to the Geneva Conventions. Even if al Qaeda were capable of becoming a party to the treaties, it has not done so, nor has it ever declared an intention to accept their terms. Naturally, al Qaeda members cannot claim the benefits of a treaty to which their organization is not a party. Thus, while the conflict with al Qaeda is governed by the laws of war, al Qaeda is not a state party to one of
the specialized codifications of those laws, the Geneva Convention.
In fact, al Qaeda members fall within the category of what are known as illegal combatants. Although “illegal combatant” is nowhere mentioned in the Geneva Conventions, it is a concept that has long been recognized by state practice in the law of war area. As the U.S. Supreme Court unanimously stated over 60 years ago, “[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.” These two sets of distinctions each play a critical role in achieving the fundamental objective of the laws of war: to minimize the amount of human suffering and hardship necessitated by a state of war.
The customary laws of war minimize human suffering in wartime by limiting the suffering and hardship of war, to the maximum extent possible, to the participating combatants, and by keeping military hostilities away from civilians. This approach naturally requires the effective enforcement of a sharp distinction between civilians and combatants. Accordingly, customary law demands that combatants respect the distinction between civilians and themselves by imposing a variety of prohibitions and requirements. Customary law forbids the intentional targeting of civilians, and encourages combatants to take measures to avoid unnecessary harm to civilians in their own military operations.
Customary law also requires combatants to distinguish themselves from the civilian population in order to help enemy soldiers avoid doing harm to civilians.28 Naturally, in return for these various protections from hostilities, civilians are strictly forbidden under customary law from engaging in hostilities. The former cannot exist without the latter; combatants cannot fairly be told to refrain from using force against civilians if they regularly suffer attacks from such groups.
Al Qaeda violates the very core of the laws of war. Al Qaeda members are not under the control of a nation-state that will force them to obey the laws of war. They operate covertly by intentionally concealing themselves among the civilian population; they deliberately attempt to blur the lines between civilians and combatants. Most importantly, they have attacked purely civilian targets with the aim of inflicting massive civilian casualties. Thus, even if al Qaeda were a nation-state and a party to the Geneva Conventions, its members would still qualify as illegal belligerents due to their very conduct.
Unlike al Qaeda, the Taliban militia arguably constituted the de facto government of Afghanistan. Afghanistan is a party to the Geneva Conventions. Nonetheless, the Taliban militia, like al Qaeda, by their conduct did not meet the standards for legal belligerency that would have made its members legally entitled to prisoner of war status. GPW entitles captured members of regular and irregular armed forces to the status of, and legal protections enjoyed by, POWs if they belong to units that meet the requirements of one of several applicable categories. GPW protections are available for members of militia under certain conditions. Article 4(A)(1) extends POW status to “members of militias or volunteer corps forming part of” the “armed forces of a Party to the conflict.” Article 4(A)(2) extends GPW protections to:
[m]embers of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or
volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance
with the laws and customs of war.
At best, it appears that Taliban fighters are members of a militia. The Central Intelligence Agency, for example, has recognized that Afghanistan has no national military, but rather a number of tribal militias factionalized among various groups.31 Thus, because members of the Taliban militia, like members of al Qaeda, do not comply with the four conditions of lawful combat expressly incorporated into article 4(A)(2) of GPW, they are not entitled to the protections of that convention.
Even if the Taliban were able to claim status as a “regular armed force,” rather than as a militia, it still could not qualify for POW status under GPW article 4(A)(1) or (3) without first satisfying the four customary conditions of lawful combat expressly
enumerated in article 4(A)(2). Article 4(A)(1) extends POW status to “[m]embers of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.” Article 4(A)(3) gives GPW protections to “[m]embers of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.” Id. Unlike article 4(A)(2), the text of article 4(A)(1) and (3) does not expressly enumerate the four traditional conditions of lawful combat. Both provisions simply extend POW status to members of the regular “armed forces” of a party to the Convention.
It has long been understood, however, that regular, professional “armed forces” must comply with the four traditional conditions of lawful combat under the customary laws of war, and that the terms of article 4(A)(1) and (3) of GPW do not abrogate customary law. To facilitate compliance with, and enforcement of, the bedrock distinction between civilians and combatants, customary law developed these four basic conditions of lawful combatantcy that all regular fighters must meet. Those conditions of customary law were later spelled out in a written text, when delegates at an 1874 Conference in Brussels drafted a declaration stating the four conditions as follows: (1) “[t]hat they have at their head a person responsible for his subordinates,” (2) “[t]hat they wear some fixed distinctive badge recognizable at a distance,” (3) “[t]hat they carry arms openly,” and (4) “[t]hat in their operations they conform to the laws and customs of war.” As recently noted by a federal district court, these “four criteria [which] an organization must meet for its members to qualify for lawful combatant status” were originally “established under customary international law” and “were first codified in large part in the Brussels Declaration of 1874.”
Commentators have similarly noted that article 9 of the Brussels Declaration was “merely declaratory of the existing customary law . .
. applicable to regulars.”
The four conditions under customary law play an essential role in enforcing the fundamental distinction between civilians and combatants. The second and third conditions are practical provisions to help soldiers recognize the distinction between members of enemy forces and civilians during the conduct of military operations. The first and fourth conditions help ensure that the substantive rules of conduct respecting this fundamental distinction, such as the prohibition on targeting of civilians and the requirement of distinguishing oneself as a combatant, are effectively enforced.
Taken together, these four conditions, aimed at facilitating the bedrock customary distinction between combatants and civilians, also establish a second fundamental distinction under customary law, that 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.
Customary law requires combatants to respect the distinction between civilians and combatants, and mandates that combatants comply with the four conditions of lawful combat as a condition of their status as legitimate belligerents entitled to engage in war on behalf of their sovereign. When various efforts were initiated, beginning in 1874, to codify customary law into written form, drafters saw no need to enumerate the four conditions with respect to regular, professional armies; that was already provided for under customary law. Explicit reference to the four conditions was necessary only in order to achieve certain innovations in the laws of war: namely, to extend the rights and duties of lawful combatants beyond fighters in regular armies, to include members of militia, volunteer corps, and other irregular forces. The four customary conditions of lawful combat were codified into a legally binding treaty for the first time in 1899, when the First Hague Peace Conference drafted article 1 of the Hague Convention Annex. Ratified by the United States in 1902,47 the 1899 Hague Convention
constitutes the first multilateral attempt to legislate in this area. This successful effort to establish binding international law
governing the treatment of prisoners of war, like subsequent efforts, tracked closely the text of article 9 of the Brussels Declaration, both
with respect to its express application of the four conditions of lawful combat to irregular forces, and its implicit incorporation of the
customary legal principle that all regular forces by definition must satisfy precisely those same four conditions. The 1907 version of the Hague Convention reflects the same approach.
It would not be long before new international texts would be introduced to govern the laws of war, given the inherent weaknesses of the 1899 and 1907 Hague Conventions. Those two conventions required state parties merely to instruct their armed forces of the principles articulated in the Annex, including the four customary conditions of lawful combat enumerated in article 1. The four conditions were finally given full legal force in 1929, when a Diplomatic Conference held that year in Geneva drafted an entirely new set of protections for POWs. Ratified by the United States in 1932, the Geneva Convention Relative to the Treatment of Prisoners of War (“1929 GPW”)49 itself did not articulate the four conditions. It instead incorporated by reference the categories of protected persons contained in article 1 of the 1907 Hague Convention
Annex.50 Thus, like the 1899 and 1907 Hague Conventions, 1929 GPW did not explicitly require armies to comply with the four traditional conditions of lawful combat. Once again, however, there was no indication that the drafters intended to abrogate customary law, under which armies have long been required to meet those conditions. To the contrary, all of these agreements tracked closely article 9 of the 1874 Brussels Declaration. As previously noted, article 9 was well understood to maintain the customary rule that regular armies must comply with the four conditions of lawful combat, even though that article did not explicitly say so. That same customary rule was also preserved in the 1899 and 1907 Hague Conventions and 1929 GPW.
Many provisions of GPW were drafted to provide more generous rights and protections to POWs than was afforded under earlier conventions governing the conduct of war and the treatment of prisoners of war. But there is no indication that the drafters intended GPW to abrogate the customary rule that regular armies must satisfy the four traditional conditions of lawful combat in order to enjoy the protections afforded by the laws of war. To the contrary, article 4 of GPW, governing eligibility for international legal protection, was drafted “in harmony” with customary legal principles embodied in the Hague Regulations, not to rescind or abrogate them.
The drafters of GPW held two basic understandings in common with their predecessors. First, under customary law, organized armed forces were already required to satisfy the four conditions of lawful combat. There was accordingly no need for article 4 to apply those conditions explicitly to such regular forces. By contrast, there was a perceived need to continue to state expressly that irregular forces must comply with those conditions to trigger the protections afforded to POWs, as was stated in earlier codifications of the laws of war. The drafters of GPW thus explicitly enumerated the four conditions of lawful combat only in the text of article 4(A)(2), using language virtually identical to that of the Hague Regulations. The provisions of GPW respecting the legal status of legitimate combatants thus track closely those of its predecessors. As previously explained, article 4(A)(2) expressly enumerates the four conditions with respect to irregular forces, such as militias and volunteers corps, not forming a part of a regular armed force of a party. Those four conditions do not appear, by contrast, in either article 4(A)(1) or (3), the provisions governing regular armed forces. However, like the Brussels Declaration, the two Hague Conventions, and 1929 GPW, there is no indication that article 4 of GPW was drafted to abrogate the long established customary rule that regular forces by definition must comply with the four conditions to enjoy the legal status of legitimate combatants under the laws of war.
Finally, subsequent international developments respecting the Geneva Conventions also reject the notion that there exist a category of combatants under GPW who are not required to comply with the four customary conditions of lawful combatantcy. In 1977, delegates from various nations drafted two protocols to the 1949 Geneva Conventions. One of the primary purposes of Protocol I Additional to the 1949 Geneva Conventions was to expand the categories of individuals who would be protected under any of the four original 1949 Geneva Conventions. Article 44(3) of Protocol I, for example, would significantly dilute the traditional requirement under customary law and GPW that combatants must distinguish themselves from civilians and otherwise comply with the laws of war as a condition of protection under the Geneva Conventions.
Specifically, that provision provides as follows:
In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant
cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his
(a) during each military engagement, and
(b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate
The Reagan Administration opposed this provision and refused to submit the first protocol to the Senate for its consideration, precisely because it opposed the idea of diluting the customary rule that combatants must comply with all four traditional conditions of lawful combatantcy. As he explained to the Senate, President Reagan opposed Protocol I, in part, because it:
would grant combatant status to irregular forces even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population and otherwise comply with the laws of war. This would endanger civilians among whom terrorists and other irregulars attempt to conceal themselves. These problems are so fundamental in character that they cannot be remedied through reservations, and I therefore have decided not to submit the Protocol to the Senate in any form . . . . [W]e must not, and need not, give recognition and protection to terrorist groups as a price for progress in humanitarian law.
The State Department likewise opposed ratification of Protocol I, noting that:
Article 44(3), in a single subordinate clause, sweeps away years of law by “recognizing” that an armed irregular “cannot” always distinguish himself from non-combatants; it would grant combatant status to such an irregular anyway. As the essence of terrorist criminality is the obliteration of the distinction between combatants and noncombatants, it would be hard to square ratification of this Protocol with the United States’ announced policy of combatting [sic] terrorism
A 1989 Department of the Navy publication similarly explains that, “[p]erhaps more than any other provision, [Article 44(3)] is the
most militarily objectionable to the United States because of the increased risk to the civilian population within which such irregulars
often attempt to hide.”59 Commentators have made similar observations about the 1977 Protocol I. Most notably, Professor Howard S. Levie has noted that, “[b]ecause irregular troops, particularly members of national liberation movements, rarely meet the requirements of [GPW Article 4(A)(2)], a strong movement surfaced early at the first session of the 1977 Diplomatic Conference with the objective of legislating protection for these individuals under practically any circumstances. . . . Unquestionably, the intent [of Article 44] was to ensure that captured members of national liberation movements would fall within the definition of prisoners of war, whatever their prior conduct may have been.” The specific grounds of opposition to article 44(3) of Protocol I by the United States thus further demonstrates that, under GPW, all combatants must comply with the four conditions expressly enumerated in article 4(A)(2) in order to enjoy the Convention’s protections.
This is not the place to discuss whether the United States had the factual basis upon which to decide whether the Taliban militia actually met the four criteria for legal belligerency. It is enough at this point to conclude that President Bush had the legal basis to conclude that the Taliban militia had to meet those four criteria in order to be legally entitled to the status of legal belligerency, and, as a result, the protections accorded to prisoners of war under the Geneva Convention.
The United States is currently engaged in a state of armed conflict, not of its own choosing, with al Qaeda, a multinational terrorist organization whose leadership declared war on the United States as early as 1996, and the Taliban militia, which harbors and supports that organization. This state of armed conflict justifies the use of military force by the United States to subdue and defeat the enemy, separate and apart from any ordinary law enforcement objectives that may also justify coercive government action against members of al Qaeda and the Taliban militia. Moreover, to give legal recognition to the current armed conflict is not to confer upon members of al Qaeda or the Taliban militia the privileged status of lawful combatants. Quite the contrary, neither group complies with the four traditional conditions of lawful combat long established under the laws of war and recognized by GPW. Members of al Qaeda and the Taliban militia have chosen to fight in blatant disregard for the laws of armed conflict and are, accordingly, unlawful combatants.
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